NATIONAL CHILD PROTECTION ACT OF 1993
HEARING
BEFORE THE
SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS
OF THE
COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
ON
H.R. 1237
NATIONAL CHILD PROTECTION ACT OF 1993
JULY 16, 1993
Serial No. 50
Printed for the use of the Co
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BOSTON PUBLIC LIBRARY
GOVERNMENT DOCUMENTS DEPARTMENT
milium; uu llm Judicial >>
80-609 cc
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046185-5
Y H .2 Si I \ . toi/i°
NATIONAL CHILD PROTECTION ACT OF 1993
HEARING
BEFORE THE
SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS
OF THE
COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
ON
H.R 1237
NATIONAL CHILD PROTECTION ACT OF 1993
JULY 16, 1993
Serial No. 50
Printed for the use of the Coi
oV w W
BOSfOd PUBLIC LIBRARY
GOVERNMENT DOCUMENTS DEPARTMENT
niiilttt'u uii l\w Judiuaiji
U.S. GOVERNMENT PRINTING OFFICE
80-609 CC WASHINGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046185-5
COMMITTEE ON THE JUDICIARY
JACK BROOKS
DON EDWARDS, California
JOHN CONYERS, JR., Michigan
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
GEORGE E. SANGMEISTER, Illinois
CRAIG A. WASHINGTON, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
DAVID MANN, Ohio
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California
Texas, Chairman
HAMILTON FISH, JR., New York
CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois
F. JAMES SENSENBRENNER, JR.,
Wisconsin
BILL MCCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
STEVEN SCHIFF, New Mexico
JIM RAMSTAD, Minnesota
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
JONATHAN R. YaROWSKY, General Counsel
ALAN F. COFFEY, Jr., Minority Chief Counsel
Subcommittee on Civil and Constitutional Rights
DON EDWARDS, California, Chairman
PATRICIA SCHROEDER, Colorado HENRY J. HYDE, Illinois
BARNEY FRANK, Massachusetts HOWARD COBLE, North Carolina
CRAIG A. WASHINGTON, Texas CHARLES T. CANADY, Florida
JERROLD NADLER, New York
Catherine LeRoy, Counsel
Ivy Davis- FOX, Assistant Counsel
JAMES X. DEMPSEY, Assistant Counsel
Virginia Sloan, Assistant Counsel
MELODY BARNES, Assistant Counsel
KATHRYN A. HAZEEM, Minority Counsel
(ID
CONTENTS
HEARING DATE
July 16, 1993 1
TEXT OF BILL
H.R. 1237 3
OPENING STATEMENT
Edwards, Hon. Don, a Representative in Congress from the State of Califor-
nia, and chairman, Subcommittee on Civil and Constitutional Rights 1
WITNESSES
Handley, Col. Thomas A., legal counsel, Civil Air Patrol 66
Miles-LaGrange, Vicki, senator, Oklahoma State Legislature, and chair, Okla-
homa Senate Judiciary Committee, on behalf of the National Conference
of State Legislatures 29
Nemecek, David F. Inspector, Deputy Assistant Director, Policy and Liaison
Branch, Criminal Justice Information Services Division, FBI 21
Potts, Lawrence F., director of Administration, Boy Scouts of America 54
Swann, Lynn C, president of the board, Big Brothers/Big Sisters of America .. 48
Williams, Renova, director of personnel, Civil Air Patrol, Maxwell Air Force
Base, Montgomery, AL 70
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Handley, Col. Thomas A., legal counsel, Civil Air Patrol: Prepared statement . 67
Miles-LaGrange, senator, Oklahoma State Legislature, and chair, Oklahoma
Senate Judiciary Committee, on behalf of the National Conference of State
Legislatures:
Prepared statement 38
State criminal history background check laws (through December 31,
1992) 31
Nemecek, David F., Inspector, Deputy Assistant Director, Policy and Liaison
Branch, Criminal Justice Information Services Division, FBI 24
Potts, Lawrence F., director of administration, Boy Scouts of America: Pre-
pared statement 56
Schroeder, Hon. Patricia, a Representative in Congress from the State of
Colorado: Prepared statement: 30
Swann, Lynn C, president of the board, Big Brothers/Big Sisters of America:
Prepared statement 50
APPENDIX
Material submitted for the hearing 75
(III)
NATIONAL CHILD PROTECTION ACT OF 1993
FRIDAY, JULY 16, 1993
House of Representatives,
Subcommittee on Civil and Constitutional Rights,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in room
2237, Rayburn House Office Building, Hon. Don Edwards (chair-
man of the subcommittee) presiding.
Present: Representatives Don Edwards, Patricia Schroeder, and
Charles T. Canady.
Also present: James X. Dempsey, assistant counsel; Jancelyn
Pegues, secretary; and Kathryn A. Hazeem, minority counsel.
OPENING STATEMENT OF CHAIRMAN EDWARDS
Mr. Edwards. The subcommittee will come to order.
The purpose of this subcommittee meeting today is to examine
H.R. 1237, a bill to establish procedures for national criminal back-
ground checks for child care providers. We have invited a number
of expert witnesses and we are looking forward to hearing from
them.
We are indebted to our colleague from Colorado, Mrs. Schroeder
for being the original author of tnis legislation. Mrs. Schroeder has
long been one of the Nation's strongest advocates for the welfare
of children and we are very grateful for the leadership that she has
offered on this bill.
The bill before us strives for a balance, since the use of criminal
history records for employment screening purposes raises impor-
tant issues of fairness and due process.
The FBI's criminal history records files have over 24 million indi-
vidual names and records, and that is a significant portion, of
course, of the work force. These records are far from perfect. The
most serious problem is that as many as 40 to 60 percent of the
records don't have dispositions, and dispositions are really essential
for an accurate criminal record because you don't know if the per-
son was found innocent or guilty.
Someday I trust that we will resolve that very serious problem.
Meanwhile, we must consider whether the FBI should provide to
employers and licensing authorities naked arrest records when that
person might have been innocent? That always has been of concern
to the subcommittee.
As a matter of fact, we used to have a 1-year rule with the FBI:
if after a year, if there was not a disposition, the record could not
be distributed. We will ask about Mr. Nemecek about that.
(1)
A second area of concern involves the impact of arrest record
checks on the poor and on minorities who are disproportionately
subject to arrests. Should a person be denied employment through-
out his life based on an arrest many, many years ago? That is an-
other issue that we should be discussing.
A third problem is the delay involved in getting a response from
the FBI. The FBI, in many cases, still uses the mail, and some-
times getting a record takes 2 months or more.
With all these issues in mind, we are looking forward to all the
witnesses who are going to help us write this bill again. It passed
the House last year, it was in the crime bill that passed the Senate
but the conference report was unfortunately filibustered to death in
the other body.
This year, we hope to have it in the crime bill but if we don't,
we are going to do it freestanding.
[The bill, H.R. 1237, follows:]
103d CONGRESS
1st Session
H.R. 1237
To establish procedures for national criminal background checks for child
care providers.
IN THE HOUSE OF REPRESENTATIVES
March 4, 1993
Mrs. Schroeder (for herself, Mr. Edwards of California, Mr. Cramer, Mr.
Kopetski, Mr. Ramstad, Mr. Shays, and Mr. Smith of Oregon) intro-
duced the following bill; which was referred to the Committee on the
Judiciary
A BILL
To establish procedures for national criminal background
checks for child care providers.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "National Child Protec-
5 tion Act of 1993".
6 SEC. 2. REPORTING BY THE STATES.
7 (a) In General. — An authorized criminal justice
8 agency of a State shall report child abuse crime informa-
2
1 tion to, or index child abuse crime information in, the na-
2 tional criminal background check system.
3 (b) Provision of State Child Abuse Crime
4 Records through the National Criminal Back-
5 ground Check System.— (1) Not later than 180 days
6 after the date of enactment of this Act, the Attorney Gen-
7 eral shall —
8 (A) investigate the criminal records of each
9 State and determine for each State a timetable by
10 which the State should be able to provide child
11 abuse crime records on an on-line capacity basis
12 through the national criminal background check sys-
13 tern;
14 (B) establish guidelines for the reporting or in-
15 dexing of child abuse crime information, including
16 guidelines relating to the format, content, and accu-
17 racy of child abuse crime information and other pro-
18 cedures for carrying out this Act; and
19 (C) notify each State of the determinations
20 made pursuant to subparagraphs (A) and (B).
21 (2) The Attorney General shall require as a part of
22 the State timetable that the State —
23 (A) by not later than the date that is 3 years
24 after the date of enactment of this Act, have in a
25 computerized criminal history file at least 80 percent
•HR 1237 IH
3
1 of the final dispositions that have been rendered in
2 all identifiable child abuse crime cases in which
3 there has been an event of activity within the last
4 5 years;
5 (B) continue to maintain at least an 80 percent
6 reporting rate of final case dispositions in all identi-
7 fiable child abuse crime cases in which there has
8 been an event of activity within the preceding 5
9 years; and
10 (C) take steps to achieve full disposition report-
11 ing, including data quality audits and periodic no-
12 tices to criminal justice agencies identifying records
13 that lack final dispositions and requesting those dis-
14 positions.
15 (c) Liaison. — An authorized agency of a State shall
16 maintain close liaison with the National Center on Child
17 Abuse and Neglect, the National Center for Missing and
18 Exploited Children, and the National Center for the Pros-
19 ecution of Child Abuse for the exchange of technical as-
20 sistance in cases of child abuse.
21 (d) Annual Summary. — (1) The Attorney General
22 shall publish an annual statistical summary of the child
23 abuse crime information reported under this Act.
24 (2) The annual statistical summary described in
25 paragraph (1) shall not contain any information that may
•HR 1237 IH
6
4
1 reveal the identity of any particular victim or alleged viola-
2 tor.
3 (e) Annual Report. — The Attorney General shall
4 publish an annual summary of each State's progress in
5 reporting child abuse crime information to the national
6 criminal background check system.
7 (f) Study op Child Abuse Offenders. — (1) Not
8 later than 180 days after the date of enactment of this
9 Act, the Administrator of the Office of Juvenile Justice
10 and Delinquency Prevention shall begin a study based on
11 a statistically significant sample of convicted child abuse
12 offenders and other relevant information to determine —
13 (A) the percentage of convicted child abuse of-
14 fenders who have more than 1 conviction for an of-
15 fense involving child abuse;
16 (B) the percentage of convicted child abuse of-
17 fenders who have been convicted of an offense in-
18 volving child abuse in more than 1 State;
19 (C) whether there are crimes or classes of
20 crimes, in addition to those defined as background
21 check crimes in section 5, that are indicative of a
22 potential to abuse children; and
23 (D) the extent to which and the manner in
24 which instances of child abuse form a basis for con-
25 victions for crimes other than child abuse crimes.
•HR 1237 IH
5
1 (2) Not later than 1 year after the date of enactment
2 of this Act, the Administrator shall submit a report to the
3 Chairman of the Committee on the Judiciary of the Senate
4 and the Chairman of the Committee on the Judiciary of
5 the House of Representatives containing a description of
6 and a summary of the results of the study conducted pur-
7 suant to paragraph (1).
8 SEC. 3. BACKGROUND CHECKS.
9 (a) In General. — (1) A State may have in effect
10 procedures (established by or under State statute or regu-
11 lation) to permit a qualified entity to contact an author-
12 ized agency of the State to request a nationwide back-
13 ground check for the purpose of determining whether
14 there is a report that a provider has been convicted of
15 a background check crime.
16 (2) The authorized agency shall access and review
17 State and Federal records of background check crimes
18 through the national criminal background check system
19 and shall respond promptly to the inquiry.
20 (b) Guidelines. — (1) The Attorney General shall es-
21 tablish guidelines for State background check procedures
22 established under subsection (a), which guidelines shall in-
23 elude the requirements and protections of this Act.
24 (2) The guidelines established under paragraph (1)
25 shall require —
•HR 1237 IH
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6
1 (A) that no qualified entity may request a back-
2 ground check of a provider under subsection (a) un-
3 less the provider first provides a set of fingerprints
4 and completes and signs a statement that —
5 (i) contains the name, address, and date of
6 birth appearing on a valid identification docu-
7 ment (as defined by section 1028(d)(1) of title
8 18, United States Code) of the provider;
9 (ii) the provider has not been convicted of
10 a background check crime and, if the provider
11 has been convicted of a background check
12 crime, contains a description of the crime and
13 the particulars of the conviction;
14 (iii) notifies the provider that the entity
15 may request a background check under sub-
16 section (a);
17 (iv) notifies the provider of the provider's
18 rights under subparagraph (B); and
19 (v) notifies the provider that prior to the
20 receipt of the results of the background check
21 the qualified entity may choose to deny the pro-
22 vider unsupervised access to a child to whom
23 the qualified entity provides child care;
•HR 1237 m
7
1 (B) that each State establish procedures under
2 which a provider who is the subject of a background
3 check under subsection (a) is entitled —
4 (i) to obtain a copy of any background
5 check report and any record that forms the
6 basis for any such report; and
7 (ii) to challenge the accuracy and com-
8 pleteness of any information contained in any
9 such report or record and obtain a prompt de-
10 termination from an authorized agency as to
1 1 the validity of such challenge;
12 (C) that an authorized agency to which a quali-
13 fied entity has provided notice pursuant to sub-
14 section (a) make reasonable efforts to complete re-
15 search in whatever State and local recordkeeping
16 systems are available and in the national criminal
17 background check system and respond to the quali-
18 fied entity within 15 business days;
19 (D) that the response of an authorized agency
20 to an inquiry pursuant to subsection (a) inform the
21 qualified entity that the background check pursuant
22 to this section —
23 (i) may not reflect all convictions for a
24 background check crime; and
•HR 1237 EH
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8
1 (ii) may not be the sole basis for determin-
2 ing the fitness of a provider;
3 (E) that the response of an authorized agency
4 to an inquiry pursuant to subsection (a) be limited
5 to the conviction information reasonably required to
6 accomplish the purposes of this Act;
7 (F) that the qualified entity may choose to deny
8 the provider unsupervised access to a child to whom
9 the qualified entity provides child care on the basis
10 of conviction information provided pursuant to a
1 1 background check under subsection (a) until the pro-
12 vider has obtained a determination as to the validity
13 of any challenge under subparagraph (B) or waived
14 the right to make such challenge; and
15 (G) that each State establish procedures to en-
16 sure that any background check under subsection
17 (a) and the results thereof shall be requested by and
18 provided only to—
19 (i) qualified entities identified by States;
20 (ii) authorized representatives of a quali-
21 fled entity who have a need to know such infor-
22 mation;
23 (iii) the provider who is the subject of a
24 background check;
25 (iv) law enforcement authorities; or
• HR 1237 m
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9
1 (v) pursuant to the direction of a court of
2 law;
3 (H) that background check information con-
4 veyed to a qualified entity pursuant to subsection (a)
5 shall not be conveyed to any person except as pro-
6 vided under subparagraph (G); and
7 (I) that a State or Federal employee or an em-
8 ployee of a political subdivision of a State respon-
9 sible for providing information to the national crimi-
10 nal background check system shall not be liable in
11 an action at law for damages for failure to prevent
12 a qualified entity from taking action adverse to a
13 provider on the basis of a criminal background
14 check.
15 (c) Equivalent Procedures. — (1) Notwithstand-
16 ing anything tc the contrary in this section, the Attorney
17 General may certify that a State licensing or certification
18 procedure that differs from the procedures described in
19 subsections (a) and (b) shall be deemed to be the equiva-
20 lent of such procedures for purposes of this Act, but the
21 procedures described in subsections (a) and (b) shall con-
22 tinue to apply to those qualified entities, providers, and
23 background check crimes that are not governed by or in-
24 eluded within the State licensing or certification proce-
25 dure.
12
10
1 (2) The Attorney General shall by regulation estab-
2 lish criteria for certifications under this subsection. Such
3 criteria shall include a finding by the Attorney General
4 that the State licensing or certification procedure accom-
5 plishes the purposes of this Act and incorporates a nation-
6 wide review of State and Federal records of background
7 check offenses through the national criminal background
8 check system.
9 (d) Regulations. — (1) The Attorney General may
10 by regulation prescribe such other measures as may be
11 required to carry out the purposes of this Act, including
12 measures relating to the security, confidentiality, accu-
13 racy, use, misuse, and dissemination of information, and
14 audits and recordkeeping.
15 (2) The Attorney General shall, to the maximum ex-
16 tent possible, encourage the use of the best technology
17 available in conducting background checks.
18 SEC. 4. FUNDING FOR IMPROVEMENT OF CHILD ABUSE
19 CRIME INFORMATION.
20 (a) Use of Formula Grants for Improvements
21 in State Records and Systems. — Section 509(b) of
22 the Omnibus Crime Control and Safe Streets Act of 1968
23 (42 U.S.C. 3759(b)) is amended—
24 (1) in paragraph (2) by striking "and" after
25 the semicolon;
•HR 1237 IH
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11
1 (2) in paragraph (3) by striking the period and
2 inserting "; and"; and
3 (3) by adding at the end the following new
4 paragraph:
5 "(4) the improvement of State record systems
6 and the sharing of all of the records described in
7 paragraphs (1), (2), and (3) and the records re-
8 quired under section 2 of the National Child Protec-
9 tion Act of 1993 with the Attorney General for the
10 purpose of implementing the National Child Protec-
11 tion Act of 1993.".
12 (b) Additional Funding Grants for the Im-
13 PROVEMENT OF CHILD ABUSE CRIME INFORMATION. —
14 (1) The Attorney General shall, subject to appropriations
15 and with preference to States that, as of the date of enact-
16 ment of this Act, have in computerized criminal history
17 files the lowest percentage of dispositions of identifiable
18 child abuse cases, make a grant to each State to be used —
19 (A) for the computerization of criminal history
20 files for the purposes of this Act;
21 (B) for the improvement of existing computer-
22 ized criminal history files for the purposes of this
23 Act;
•HR 1237 EH
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12
1 (C) to improve accessibility to the national
2 criminal background check system for the purposes
3 of this Act; and
4 (D) to assist the State in the transmittal of
5 criminal records to, or the indexing of criminal his-
6 tory record in, the national criminal background
7 check system for the purposes of this Act.
8 (2) There are authorized to be appropriated for
9 grants under paragraph (1) a total of $20,000,000 for fis-
10 cal years 1994, 1995, and 1996.
11 (c) Withholding State Funds. — Effective 1 year
12 after the date of enactment of this Act, the Attorney Gen-
13 eral may reduce, by up to 10 percent, the allocation to
14 a State for a fiscal year under title I of the Omnibus
15 Crime Control and Safe Streets Act of 1968 that is not
16 in compliance with the timetable established for that State
17 under section 2 of this Act.
18 SEC. 5. DEFINITIONS.
19 For the purposes of this Act —
20 (1) the term "authorized agency" means a divi-
21 sion or office of a State designated by a State to re-
22 port, receive, or disseminate information under this
23 Act;
24 (2) the term "background check crime" means
25 a child abuse crime, murder, manslaughter, aggra-
•HR 1237 SB
15
13
1 vated assault, kidnapping, arson, sexual assault, do-
2 mestic violence, incest, indecent exposure, prostitu-
3 tion, promotion of prostitution, and a felony offense
4 involving the use or distribution of a controlled sub-
5 stance;
6 (3) the term "child" means a person who is a
7 child for purposes of the criminal child abuse law of
8 a State;
9 (4) the term "child abuse" means the physical
10 or mental injury, sexual abuse or exploitation, ne-
11 glectful treatment, negligent treatment, or maltreat-
12 ment of a child by any person in violation of the
13 criminal child abuse laws of a State, but does not in-
14 elude discipline administered by a parent or legal
15 guardian to his or her child provided it is reasonable
16 in manner and moderate in degree and otherwise
17 does not constitute cruelty;
18 (5) the term "child abuse crime" means a crime
19 committed under any law of a State that establishes
20 criminal penalties for the commission of child abuse
21 by a parent or other family member of a child or by
22 any other person;
23 (6) the term "child abuse crime information"
24 means the following facts concerning a person who
25 is under indictment for, or has been convicted of, a
•HR 1237 IH
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14
1 child abuse crime: full name, race, sex, date of birth,
2 height, weight, fingerprints, a brief description of
3 the child abuse crime or offenses for which the per-
4 son has been arrested or is under indictment or has
5 been convicted, the disposition of the charge, and
6 any other information that the Attorney General de-
7 termines may be useful in identifying persons ar-
8 rested for, under indictment for, or convicted of, a
9 child abuse crime;
10 (7) the term "child care" means the provision
11 of care, treatment, education, training, instruction,
12 supervision, or recreation to children;
13 (8) the term "domestic violence" means a fel-
14 ony or misdemeanor involving the use or threatened
15 use of force by —
16 (A) a present or former spouse of the vic-
17 tim;
18 (B) a person with whom the victim shares
19 a child in common;
20 (C) a person who is cohabiting with or has
21 cohabited with the victim as a spouse; or
22 (D) any person defined as a spouse of the
23 victim under the domestic or family violence
24 laws of a State;
•HR 1237 IH
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15
1 (9) the term "exploitation" means child pornog-
2 raphy and child prostitution;
3 (10) the term "mental injury" means harm to
4 a child's psychological or intellectual functioning,
5 which may be exhibited by severe anxiety, depres-
6 sion, withdrawal or outward aggressive behavior, or
7 a combination of those behaviors or by a change in
8 behavior, emotional response, or cognition;
9 (11) the term "national criminal background
10 check system" means the criminal history record
1 1 system maintained by the Federal Bureau of Inves-
12 tigation based on fingerprint identification or any
13 other method of positive identification;
14 (12) the term "negligent treatment" means the
15 failure to provide, for a reason other than poverty,
16 adequate food, clothing, shelter, or medical care so
17 as to seriously endanger the physical health of a
18 child;
19 (13) the term "physical injury" includes lacera-
20 tions, fractured bones, burns, internal injuries, se-
21 vere bruising, and serious bodily harm;
22 (14) the term "provider" means
23 (A) a person who —
24 (i) is employed by or volunteers with
25 a qualified entity;
•HR 1237 IH
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16
1 (ii) who owns or operates a qualified
2 entity; or
3 (iii) who has or may have unsuper-
4 vised access to a child to whom the quali-
5 fied entity provides child care; and
6 (B) a person who—
7 (i) seeks to be employed by or volun-
8 teer with a qualified entity;
9 (ii) seeks to own or operate a qualified
10 entity; or
11 (iii) seeks to have or may have unsu-
12 pervised access to a child to whom the
13 qualified entity provides child care;
14 (15) the term "qualified entity" means a busi-
15 ness or organization, whether public, private, for-
16 profit, not-for-profit, or voluntary, that provides
17 child care or child care placement services, including
18 a business or organization that licenses or certifies
19 others to provide child care or child care placement
20 services;
21 (16) the term "sex crime" means an act of sex-
22 ual abuse that is a criminal act;
23 (17) the term "sexual abuse" includes the em-
24 ployment, use, persuasion, inducement, enticement,
25 or coercion of a child to engage in, or assist another
•HR 1237 IH
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17
1 person to engage in, sexually explicit conduct or the
2 rape, molestation, prostitution, or other form of sex-
3 ual exploitation of children or incest with children;
4 and
5 (18) the term "State" means a State, the Dis-
6 trict of Columbia, the Commonwealth of Puerto
7 Rico, American Samoa, the Virgin Islands, Guam,
8 and the Trust Territories of the Pacific.
• HR 1237 IH
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20
I
Mr. Edwards. I yield to the gentlewoman from Colorado, Mrs.
Schroeder.
Mrs. Schroeder. Thank you very much, Mr. Chairman. I think
ou are underplaying your very active role in helping us draft this
ill. We thank you so much for helping us.
The original cosponsors of the bill are delighted that this hearing
has been scheduled because this is something we have been trying
to get through here forever, and I think it is long overdue.
The National Child Protection Act of 1993 is what we are talking
about today. It is something that Oprah Winfrey has dedicated her
energy and talents to. The bottom line is it is incredible in this
country that with all the technology, with all the ways that we
could streamline communication between States, that we have still
not done this vis-a-vis protecting children from people who have
moved across jurisdictions and continue to interface with kids.
What this legislation basically does is to provide grants to States
to improve their reporting to the national crime reporting system
that provides the data on convicted child abusers. That is very im-
portant. Then States will be able to access this data base to finish
background checks on anyone who is going to be a child care pro-
vider or a volunteer in youth service organizations.
I have always been amazed, I think all the cosponsors have been
amazed, that we seem to care much more about cars than we do
kids in this country. We have much better information systems
about stolen cars, about all of those types of issues around auto-
mobiles, than we do children.
This bill would authorize $20 million in direct Federal assistance
to help States improve the reporting of their criminal justice
records. I think that the issues that the chairman brought up are
very important. We obviously want to make sure these records are
valid and that they are not prejudging people. But once we have
found someone convicted, we want them on the record so that peo-
ple can find this out.
I thank you so much for moving on this. I am anxious to hear
the witnesses today. I am going to ask unanimous consent to put
the rest of my statement in the record, Mr. Chairman. And thank
you once more sincerely for your help and the staffs help and ev-
eryone else's in bringing this to the forefront today.
Mr. Edwards. Without objection, the gentlewoman's statement
will be made part of the record in full.
[The prepared statement of Mrs. Schroeder follows:]
Prepared Statement of Hon. Patricia Schroeder, a Representative in
Congress From the State of Colorado
Mr. Chairman, thank you for holding this hearing today and for your support
throughout the development of this bill. On March 4, you and I along with Rep-
resentatives Bud Cramer, Michael Kopetski, Jim Ramstad, Bob Smith, and Chris
Shays introduced the National Child Protection Act of 1993. This bill is designed
to protect children from being abused and victimized when they are in child care
or involved in youth activities outside their homes.
I want to thank the original cosponsors as well as the other additional cosponsors
of this legislation for their commitment to ensuring the safety of our nation's most
vulnerable children. I also want to thank the many groups that have responded so
positively to the legislation and have provided valuable input.
A very special thanks to Ms. Oprah Winfrey who has dedicated her energy and
talents to focusing the spotlight or public attention on the issue of child abuse and
this issue in particular.
21
21
I also want to thank the members and staff of the former House Select Committee
on Children, Youth, and Families. Their hard work on this issue and the issue of
child abuse will be sorely missed by Congress.
This legislation will provide grants to states to improve their reporting to the na-
tional crime reporting system by providing data on convicted child abusers. States
will be able to access the data base to complete background checks on potential and
current child care providers and volunteers with youth service organizations. Hav-
ing access to this data will prevent persons convicted of child abuse crimes from
being hired in these settings.
The bill authorizes $20 million in direct Federal assistance to help states to im-
prove the reporting of their criminal justice records. The legislation includes specific
timetables so that accurate, up-to-date information on child abuse convictions will
be available on a national basis within three years. The bill contains safeguards to
ensure that information provided is accurate, current, and includes only convictions
of abuse.
Child care providers and youth-serving organizations will be able to conduct back-
ground checks on current or potential employees or volunteers by making applica-
tions with the appropriate state agency. The cost of the background check will be
borne by the employer or organization.
I'm anxious to hear our witnesses today and to swiftly report out this bill so the
full House can pass it.
Mr. Edwards. The ranking minority member, Mr. Henry Hyde
of Illinois, deeply regrets that a prior appointment will not allow
him to be here today. Mr. Hyde has always been of great help in
legislation like this and I know he is sorry that he is not here.
The gentleman from Florida, Mr. Canady.
Mr. Canady. Thank you, Mr. Chairman. I would like to join in
thanking you for calling this hearing today. This is an important
issue and deserves the consideration of this committee.
I appreciate each of the witnesses taking their time to be with
us and I am looking forward to hearing what they have to say. This
is a somewhat complex issue and I think it deserves our serious
consideration.
We need to look at all aspects of it to make sure we come up with
a workable solution that will provide the information we need in
a cost-effective manner.
Thank you, Mr. Chairman.
Mr. Edwards. Thank you, Mr. Canady.
Our first witnesses is David F. Nemecek who has been a friend
and adviser to the subcommittee for many years and we have
worked very closely with Mr. Nemecek. He is the Deputy Assistant
Director in charge of the Policy and Liaison Branch of the Criminal
Justice Information Services Division of the FBI.
Welcome.
Without objection, your full statement will be made part of the
record. If you could summarize your statement, we would appre-
ciate it.
STATEMENT OF DAVED F. NEMECEK, INSPECTOR, DEPUTY AS-
SISTANT DIRECTOR, POLICY AND LIAISON BRANCH, CRIMI-
NAL JUSTICE INFORMATION SERVICES DIVISION, FBI
Mr. Nemecek. Thank you very much, Mr. Chairman, other Mem-
bers, staff. It is a pleasure for me to be here again today and to
make some brief comments regarding this particular issue.
With regard to H.R. 1237, the National Child Protection Act, let
me first state unequivocally that the administration strongly sup-
ports the goals of tnis act, protection of this Nation's children from
22
abuse. Nothing is more important than the well-being of our most
precious national resource, our children.
The FBI and the Department of Justice are committed to the
successful implementation of legislation which addresses this
problem.
My testimony today will address your bill from the perspective
of the FBI. As you indicated, I represent the new CJIS Division.
This Division is particularly affected by any legislation which in-
volves access to documented criminal information, whether the in-
formation is to identify fugitives or criminal history records. This
Division is now responsible for managing all of these information
services. These include the National Crime Information Center,
known as NCIC, the uniform crime reporting system, which is our
statistical system, and the fingerprint-based criminal history record
system.
NCIC is the online system accessed by police officers typically
throughout the United States when a citizen is contacted on the
street. NCIC provides information on fugitives, missing children
and stolen property such as motor vehicles.
The interstate identification index, known as III, which is
accessed through the NCIC system, is an automated criminal his-
tory record system that can be inquired upon based upon name and
numeric identifier. A III response provides arrest and disposition
information, originating from State records in 24 States, and these
are known as participating States.
The rest of the criminal history record information now comes
from the FBI, until such time as these States are in a technical po-
sition to provide their records. Due to the laws of many of the 24
participating States which restrict dissemination of criminal his-
tory records, the III system is currently reserved only for criminal
justice agencies for criminal justice purposes and for certain Fed-
eral agencies with national security responsibilities for narrowly
defined national security purposes.
Perhaps most important to my discussion of 1237 is access to
FBI-maintained fingerprint records. These records consist of finger-
print records, personal identification information, such as date of
birth and physical descriptors, and listings of the subject's arrest
and disposition of these arrests.
These records are currently accessed by manual submission, that
is through the mail, by submitting all fingerprints for criminal jus-
tice and noncriminal justice purposes as covered by applicable Fed-
eral and State laws.
We are in the process of upgrading all of these systems. With the
support of this committee and Congress, we are in the process of
creating a new automated system called the integrated automated
fingerprint identification system, known as IAFIS, and this will be
completed in 1998.
This will support automated submission of 10-print fingerprint
cards for all criminal and noncriminal justice purposes. This will
permit online searching, and what that means is a very timely in-
quiry to determine identification, as well as to retrieve criminal
history records.
This will greatly increase the speed and efficiency of noncriminal
justice background screening, possibly reducing the turnaround
23
time from the current average of 2 weeks to 2 hours, or up to 24
hours.
Many Federal and State agencies now access this data base for
many of the purposes covered by 1237. Thirty-one States and the
District of Columbia have enacted statutes that require criminal
history screening for some category of child care providers. This
screening is currently accomplished through submission of finger-
prints to the FBI, channeled through the State Identification
Bureau.
In addition, the Comprehensive Crime Control Act of 1990 re-
quires criminal history screening for employees of federally run
child care centers. Effectiveness of screening via these provisions is
currently being evaluated by the Inspector General of the Depart-
ment of Health and Human Services.
Child care provider criminal history background screening is cur-
rently accomplished by providing the complete criminal history
record to a Federal, State or local agency. These private child care
providers do not receive access to an applicant's criminal history in-
formation. That is, there is a screening or regulating agency at the
State level.
This system has tangible benefits. First, use of licensing or
screening agencies ensures uniform application of standards with
respect to whether certain criminal records disqualify an applicant
for employment. Second, control of the information, which is gen-
erally sensitive and not for general dissemination, is greater with
governmental agencies.
Centralization of the screening function provides an easily acces-
sible point for auditing of access to and dissemination of sensitive
record information. This is an issue to which the FBI is particu-
larly sensitive. Protection of criminal history records has proven to
be difficult, especially without the existence of complete Federal
criminal sanctions against unauthorized possession and/or dissemi-
nation of such information.
One of the strengths of H.R. 1237 is its recognition of the impor-
tance of fingerprints to the screening process as the only existing
method of positive identification. This proposal appropriately re-
quires criminal history screening by fingerprint submissions and
therefore will avoid misidentification. The FBI continues to support
and urge the use of fingerprint identification in all history record
screening systems.
Several other technical points should also be highlighted. Section
3(b)(E) limits the information that can be disseminated to author-
ized recipients to "convictions." FBI criminal history records to a
large extent are not complete with respect to disposition of arrests.
Additionally, State criminal records are often not complete or
fully automated, making access as required by 1237 difficult, if not
impossible, without significant updating and improvement of many
State systems. H.R. 1237 contains some funding authorizations for
these purposes similar to funding provided in previous handgun
purchaser screening legislation.
Much of the burden of legislation which involves access to crimi-
nal history records falls on State record systems. These burdens in-
clude minimum standards for disposition reporting which must be
met within specific time periods, subject to funding cuts if not met.
24
It is likely that many States will face such reductions absent sig-
nificant Federal funding.
I would also note that currently Congress has authorized the FBI
to charge fees for noncriminal justice access to our record system.
These fees are necessary to maintain the system given the addi-
tional burden that employment and licensing screening creates.
We read nothing in H.R. 1237 that abrogates this authorization
for screening requests under its provisions and believe such fees to
be appropriate given the interests of both the Federal Government
and States in fairly apportioning the cost of the system.
In closing, the FBI, Department of Justice and the administra-
tion strongly support the goals of this legislation and look forward
to continued cooperation with your subcommittee in your efforts to
address this important problem.
Thank you, Mr. Chairman.
Mr. Edwards. Thank you.
[The prepared statement of Mr. Nemecek follows:]
Prepared Statement of David F. Nemecek, Inspector, Deputy Assistant Direc-
tor, Policy and Liaison Branch, Criminal Justice Information Services Di-
vision, FBI
Mr. Chairman, and members of the Subcommittee, I appreciate the opportunity
to appear before you today to discuss H.R. 1237, the "National Child Protection Act."
Let me first state unequivocally that the Administration strongly supports the goals
of the Act — protection of this Nation's children from abuse. Nothing is more impor-
tant than the well-being of our most precious national resource — our children. The
FBI and the Department of Justice are committed to the successful implementation
of legislation which addresses this problem. My testimony today will address your
bill from the perspective of the FBI.
As you know, I represent the FBI's newly formed Criminal Justice Information
Services Division. CJIS, as the Division is known, is particularly affected by any leg-
islation, such as H.R. 1237, which involves access to documented criminal informa-
tion, whether it be information to identify fugitives or criminal history record. CJIS
is now responsible for managing all FBI systems providing criminal or identification
information to Federal, state, and local agencies. These systems include the Na-
tional Crime Information Center, known as NCIC, the Uniform Crime Reporting
program, and the fingerprint-based criminal history record system.
A brief word of explanation about some of these systems may be helpful because
they may be affected directly by this and other similar legislative proposals. NCIC
is the online system accessed by police officers typically when a citizen is contacted
on the street. NCIC provides information specifically to enable the immediate identi-
fication of fugitives, missing persons, and stolen property such as motor vehicles.
The Interstate identification Index, known as III, is accessed through the NCIC
telecommunications network. Ill provides automated criminal history information
based on name and a numeric identifier. An III response, which provides arrest and
disposition information, originates from the criminal records maintained by 24
states, known as "participating states," and from FBI records for the 26 non- "par-
ticipating" states. Due to laws of many of the 24 participating states which restrict
dissemination of criminal records, III is currently reserved for 1) criminal justice
agencies using III for criminal justice purposes, and 2) certain Federal agencies with
National security responsibility for narrowly defined National security employee
screening.
Perhaps most important to my discussion of H.R. 1237, is access to FBI-main-
tained fingerprint records. These records consist of fingerprints, personal identifica-
tion information, such as date-of-birth and physical descriptors, and listings of the
subject's arrests and dispositions of those arrests. These records are currently
accessed by manual submission of ten-print fingerprint cards for both criminal jus-
tice and noncriminal justice purposes under applicable Federal and state laws.
All of these systems are in the process of being upgraded. The Integrated Auto-
mated Fingerprint Identification System (IAFIS), scheduled to be completed in early
25
1998, will support automated submission of ten-print fingerprint records for screen-
ing purposes. This system will allow the online submission and searching of finger-
prints, and the return of relevant criminal history records to criminal justice re-
questers. This will greatly increase the speed and efficiency of noncriminal justice
background screening possibly reducing the turn-around time from the current two
weeks to two hours.
Many Federal and state agencies now access the fingerprint-based criminal his-
tory records maintained by the FBI for purposes similar or identical to the purpose
of Hit. 1237. Thirty-one (31) states and the District of Columbia have enacted stat-
utes that require criminal history screening for some category of child care provid-
ers. This screening is currently accomplished through submission of fingerprints to
the FBI. In addition, the Comprehensive Crime Control Act of 1990 requires crimi-
nal history screening for employees of Federally-run child care centers. The effec-
tiveness of screening pursuant to these provisions is currently being evaluated by
the Inspector General of the Department of Health and Human Services.
Chile! care provider criminal history background screening is currently accom-
plished by providing the complete criminal history record to a Federal, state, or local
agency. Private child care providers do not receive access to an applicant's criminal
history record information. This system has tangible benefits. First, use of licensing
or screening agencies ensures uniform application of standards with respect to
whether certain criminal records disqualify an applicant for employment. Second,
control of the information, which is generally sensitive and not for general dissemi-
nation, is greater with governmental agencies. Centralization of the screening func-
tion provides an easily accessible point for auditing of access to and dissemination
of sensitive record information. This is an issue to which the FBI is particularly sen-
sitive. Protection of criminal history records has proven to be difficult, especially
without the existence of any Federal criminal sanctions against unauthorized pos-
session and/or dissemination of such information.
One of the strengths of H.R. 1237 is its recognition of the importance of finger-
prints to the screening process as the only existing method of positive identification.
This proposal appropriately requires criminal history screening by fingerprint sub-
missions and therefore will avoid misidentification. The FBI continues to support
and urge the use of fingerprint identification in all criminal history screening
systems.
Several other technical points should also be highlighted. Section 3(b)(E) limits
the information that can be disseminated to authorized recipients to "convictions."
FBI criminal history records to a large extent are not complete with respect to dis-
positions of arrests. Additionally, state criminal records are often not fully auto-
mated, making access as required by H.R. 1237 difficult, if not impossible, without
significant updating and improvement of many state systems. H.R. 1237 contains
some funding authorizations for these purposes, similar to funding provided in pre-
vious handgun purchaser screening legislation. Much of the burden of legislation
which involves access to criminal history records falls on state record systems.
Those burdens include, with respect to H.R. 1237, minimum standards for disposi-
tion reporting which must be met within specific time periods, subject to funding
cuts if not met. It is likely that many states will face such reductions absent signifi-
cant Federal funding.
I would also note that currently Congress has authorized the FBI to charge fees
for noncriminal justice access to our criminal history record system. These fees are
necessary to maintain the system given the additional burden that employment and
licensing screening creates. We read nothing in H.R. 1237 that abrogates this au-
thorization for screening requests under its provisions and believe such fees to be
appropriate given the interests of both the Federal government and states in fairly
apportioning the costs of the system.
In closing, let me again state: the FBI, Department of Justice, and the Adminis-
tration strongly support the goals of this legislation and look forward to continued
cooperation with your Subcommittee in your efforts to address this important prob-
lem.
I would be happy to answer any questions members of the Subcommittee may
have.
Mr. Edwards. Mrs. Schroeder, do you have any questions of the
FBI?
Mrs. Schroeder. I am not quite sure I understood, you said
there are 24 States going along with the III?
Mr. Nemecek. Yes. We actually have 50 States that make in-
quiries into the system. We are in the process of decentralizing the
26
FBI's recordkeeping responsibility because we know there are more
accurate and complete records at the State level. We have 24
States now that have connected their computers to our computer
systems so that we can have a rapid retrieval of that information
rather than relying on the FBI's records.
So this actually is a positive step to giving us more complete
records for these purposes.
Mrs. Schroeder. So this bill would help accelerate that, the $20
million in grants for States?
Mr. NEMECEK. Certainly, it will help. One of the conditions of
participating is to have good quality records, more complete
records, automated records, and certainly this money would help
accelerate that process.
Mrs. Schroeder. What do you see as the biggest drawback? If
you had a wish list — I know you said you basically support this. If
there was one thing you could put in here that would make the
FBI's iob easier — is it an FBI problem, is it a State court problem,
is it that you don't have proper equipment? What is the problem?
Mr. NEMECEK. I am sure it is a fairly common problem, but as
long as I am wishing, the wish is that there would be sufficient
money to have 100 percent accurate records with all of the disposi-
tions, arrests, convictions, and that all these records were
automated.
As I believe you are aware, we have spent a number of years try-
ing to improve the quality of these records at the FBI and State
and local level. We find that this is not always the highest priority
in criminal justice, and that is getting these records, following up
on an arrest when a court doesn't report a disposition, et cetera,
and the entire burden falls upon the law enforcement agencies to
collect this data.
So to the extent that we can improve these systems, and we are;
to the extent we can create automated links from the courts to the
State data bases to add the convictions; to the extent that we can
automate correctional information, prosecutors' information, we
have made a great deal of progress over the years, then I think we
need to fund these initiatives, particularly at the local and State
level, to get these complete records, because the future of criminal
history record systems in this country is to focus on State data
bases with the FBI playing a role of a national index for identifica-
tion and then a coordinator of facilitating the flow of this informa-
tion. So the funding is a very critical element.
The $20 million certainly will not complete the job. To the extent
that we can find ways to continue the flow of information, that is
probably the most important focus we could have.
Mrs. Schroeder. Where do you think the information channel
breaks down the most or is there a better place to place it? It is
hard for the average American to understand how we can have
huge computers that can process a zillion transactions in seconds
and yet we can't quite get this done. Is it that the law enforcement
people have not quite kept up with the pace of technology, or would
it be better placed at the courts where they are more apt to have
clerks that are more used to paperwork? Do we have it in the right
place or is it everybody is so understaffed that it is the thing that
falls through?
27
How do we make it simpler and easier; because if it isn't any
good, it isn't worth spending the money on?
Mr. Nemecek. I believe you have the focus in the right place.
Some 20 years ago when I first became involved in this issue, we
used to have the concern that courts, corrections, prosecutors and
law enforcement all didn't do their part. Each of these components
have to do their part and we have to pull the record information
together.
We seem to have made a lot of progress in breaking down those
barriers, and probably the State Identification Bureau where you
have the fingerprint-based identification, the expertise and the
technology is the correct place to locate it, and what we have to do
is to work on these channels of getting the other information — that
is other than arrest data.
We find that we have the majority of the arrest data. It is the
conviction data. So it is bringing those linkages and getting the
other agencies to pull it in. Frankly, it is an issue of priorities and
resources, and certainly it is a tough issue these days.
Mrs. Schroeder. Well, thank you very much, Mr. Chairman. As
I say, as you watch this, if there are certain ideas you have for how
we could better draft the bill, other than more money — but any
other things, we could certainly use the input.
Mr. Nemecek. Thank you very much.
Mr. Edwards. Mr. Canady.
Mr. Canady. I have just a few questions.
About how many employment and licensing checks do you do in
an average year?
Mr. Nemecek. I don't have the figure for a year. The FBI's li-
censing and employment checks vary, but approximately 50 percent
of all of our inquiries now on our systems are licensing and employ-
ment checks, which led to us actually establishing the fee system,
because there is such a great increase in it. So I would say on a
given day, via the submission of fingerprint cards, I would say per-
haps 25,000 to 30,000 a day at the Federal level. This does not in-
clude the additional ones at the State level. So there is a signifi-
cant number that are being made and it is increasing each year.
Mr. Canady. With respect to that $23 fee that is charged, how
much of that covers the actual costs of doing the individual search
and how much of that is used to support your automation efforts?
Mr. Nemecek. I don't know that I have the exact figure. That
changes somewhat. I believe about 80 percent of its goes toward
just doing the tech search and the process. I think it is approxi-
mately 20 percent to build this new online system that we are
working on.
Mr. Canady. In your testimony, you have expressed concern
about records being disseminated to employers directly.
Mr. Nemecek. Yes, sir.
Mr. Canady. Do you believe that it is preferable that the whole
record go to a State regulatory agency and that the State agency
be then in the position to make the judgment on what is disqualify-
ing and what is not?
Mr. Nemecek. Yes, sir, absent any compelling reason to do other-
wise, that is the standard way that licensing employment checks
are done in this country. It places the review of trie record in the
28
hands of skilled individuals that are capable of interpreting various
State's laws, determining what is a conviction, what is not, and
then providing a decision whether or not there is a disqualifying
basis.
It does, as I indicated in my statement, provide some sort of
standardization of interpreting the records and ensuring that the
appropriate decisions are made. An argument could be made by
someone that by seeing the actual record, they can somehow make
a decision that deserves support. But generally, I don't see that
being the case.
The regulating agency's job is to regulate and to grant these li-
censes, and I believe that is the appropriate place for it.
Mr. Canady. Some people have suggested that a name check in-
stead of a fingerprint check would be adequate at least as an initial
screening mechanism, perhaps to be followed up by a fingerprint
check. What would be your response to that approach?
Mr. Nemecek. I guess my initial would be that for those that are
honest and always tell the truth, it works just fine. To the extent
that there is someone that has something to hide, in terms of their
identity, then we are going to miss that check. That is why we
have always stressed the importance of fingerprint checks as being
the only positive identification.
Another way of describing it is how much of a loaf do we want
when it comes to protecting our children. It is not the complete loaf
and it is not the best way to do these checks.
Mr. Canady. You may have touched on this earlier, but what is
the current response time for a fingerprint check?
Mr. Nemecek. I indicated in my statement that it is approxi-
mately 2 weeks. Depending upon resources, personnel, et cetera,
this sometimes is 8 to 12 weeks after it arrives to the FBI. We find,
though, that from State to State, these turnaround times vary
widely, sometimes months, sometimes days or weeks, but there are
tremendous disparities around the country, depending upon that
State identification bureau's ability to respond. Generally speaking,
when the State is charging a fee, they tend to get pretty good
service.
Mr. Canady. That is all the questions I have, Mr. Chairman.
Thank you very much.
Mr. Edwards. Thank you, Mr. Canady.
I might add that the FBI and the Judiciary Committee move in
this area very reluctantly, because the fingerprint criminal history
system of the FBI was designed for the criminal justice system for
fighting crime and for sentencing, and for other very important
crime issues, and once they get started where civilian agencies and
other private organizations feel that they are entitled to the crimi-
nal histories, it does raise some real problems. So we have been
guarded, and so has the FBI, in adding new groups that can get
these criminal histories.
It has to be a pretty darned important organization, with a very
important need before we look upon it favorably, and you can see
what has happened. This didn't start until just a few years ago and
29
already over half the requests are for licensing and for organiza-
tions such as day care centers, banks, savings and loans, and peo-
ple like that have the privilege of getting this information from the
FBI.
But when the issue is real, and we think this is a real issue, we
think Mrs. Schroeder and the sponsors of this bill and Oprah
Winfrey and others are correct, that we can't let what has been
going on go on as far as child care centers. We move in that direc-
tion, and the FBI has been cooperative, though it is a considerable
additional burden to them.
I have no questions. Thank you very much, Mr. Nemecek.
Mr. Nemecek. Thank you, Mr. Chairman.
Mr. Edwards. Our next witness is a personal friend of the Hon-
orable Craig Washington of Houston, TX, who unfortunately could
not be here today, but he sends his very best regards, Senator. He
says he wishes he could be here and is very pleased that your ex-
pert testimony is being received today.
The next witness is the Honorable Vicki Miles-LaGrange, senator
and chair of the Oklahoma Senate Judiciary Committee. She is tes-
tifying for the National Conference of State Legislatures.
Senator, welcome.
Without objection your full statement is a part of the record, and
you may proceed.
STATEMENT OF VICKI MILES-LaGRANGE, SENATOR, OKLA-
HOMA STATE LEGISLATURE, AND CHAIR, OKLAHOMA SEN-
ATE JUDICIARY COMMITTEE, ON BEHALF OF THE NATIONAL
CONFERENCE OF STATE LEGISLATURES
Ms. Miles-LaGrange. Thank you very much.
Good morning. On behalf of the National Conference of State
Legislatures, and I am here in that capacity this morning, rep-
resenting that organization as chair of the Law and Justice Com-
mittee, we support the goal of improving criminal history records
which are sought in this bill. Certainly, a nationwide criminal his-
tory background check we believe can be very useful in the field
of child care, as well as in other areas.
I would like to just mention that I guess I am particularly sen-
sitive to this area myself, personally. Before serving in the legisla-
ture, I served as a State prosecutor and saw firsthand the very
frightening toll that abuse exacts from our Nation's children.
Let me speak very briefly to a cost issue that is a concern of
NCSL. We believe that the cost of improving automation and dis-
position rate of the State criminal history records is not calculated
and may not be accurately reflected by the set-aside in the Byrne
Memorial Fund and the additional $20 million which is in your bill.
Certainly, the omnibus crime bill, the last session, authorized $100
million annually to accomplish many of the same objectives.
The bill reiterates the availability of funding under the drug con-
trol system improvement grants and it offers this $20 million for
automation. I don't know if it is really clear from the bill that the
amounts through the set-asides and the additional grants were cho-
sen based upon very specific cost estimates, showing the actual cost
that a particular State might face over the next 3 years to actually
comply with the mandate.
Qn-finQ n - qa - o
30
One idea of those costs, just looking at my own State, the State
of Oklahoma, where the estimate to actually consolidate criminal
history records and bring them online in the automated fingerprint
identification system would have a cost of $5.8 million over a 3-
year period. The State of Oklahoma is currently under the 80-per-
cent disposition which is required in the bill, but we certainly hope
to improve very quickly and we are certainly working in that
direction.
Under the criminal history records improvement program, the
State of Oklahoma has received another $176,000 for July 1992,
through June 1994, to improve the accuracy, the completeness and
the timeliness of our records. Just by comparison, some of the other
States have much further to go in their process, and although we
are unable at this hearing to really provide estimates, the National
Conference of State Legislatures is certainly willing to work with
the committee to try to obtain more accurate estimates of real po-
tential cost to comply with the bill.
We believe that criminal history background checks certainly can
be useful, but it is also the position of NCSL that the criminal his-
tory background checks are still only a part of what both the Fed-
eral and State governments must do to ensure safe environments
for our children. We strongly support this measure, and believe
that there are excellent benefits to be derived. At the same time,
we hope that we don't create any unrealistic expectations about the
benefits to be derived from a nationwide criminal history back-
ground check, expecting too much, if you will.
I guess the whole tragedy of the child sexual abuse area that cer-
tainly this bill seeks to address, and addresses very effectively, is
that until we continue to concentrate very serious resources at both
the State and the national level on child abuse prevention, we all
are just only going to be scratching the surface, and in that respect,
our organization supports the goals of the Child Abuse Prevention
and Treatment Act. We hope that the Federal Government will
continue its commitment to confronting and preventing this na-
tional disgrace.
As I mentioned earlier, Oklahoma, among many other States,
has adopted mandatory fingerprints checks for some in the child
care system, and I have for your perusal a State by State grid of
those States adopting criminal history background checks and who
has access to those records.
Mr. Edwards. That will be made a part of the record also.
[The information follows:]
31
STATE CRIMINAL HISTORY
BACKGROUND CHECK LAWS
(through December 31, 1992)
Thi» Uble wit copyrighted in 1993 by the National Center for Miumg and Exploited Children, Arlington, Virginii, USA and
reprinted from Selected Slate Legislation: A Guide for Effective La»i i.> Pirtc.t Children with permission. All right* reserved.
32
STATE CRIMINAL HISTORY BACKGROUND CHECK LAWS
(through December 31, 1992)
SMC
Daycare
—
Foster Care and
Residential Facilities
Other Organizations or
Individuals
Alabama
(26-20-1 T.V
(26-20-1 T.V
(26-20-1 T.V
(26-20-1 T.V
public or private child cart
public or private residenuaJ
anv organization providing i,
center or child care home
facility, intermediate or
long-term care facility,
correctional or detention
facility
service* to children ma>
request
ji
Alaska
112-3-2-18 E
(12-3-2-18 E
(12.62.035 E.V
112-3-2-19 L
(12-3-2-18 L
anv o ream/anon providing
child care center or home
foster home or residenuaJ
facility
services to children ma>
request
\nzonm
§33-883 02 child care center
(28-11401 B
(41-1750 adoptive parents
(41-1750 E.V
personnel
(15-512 (15-534
or custodians
any organization providing i
$33-883.03 child care home
(15-1380 E.V
(41-2814 E.V
services to children may
personnel.
state secure care facility
(14-160602 E
state correctional facility.
request
(8-20301 state probation
officers
(8-230 02 (46-141 ail state
personnel paid or volunteer
providing service directly to
juveniles.
Arkansas
(12-12.211 criminal hisiorv
informauon made available
only to criminal justice
agencies and regulatory
agencies with specific
statuiorv access
California
Health and Safetv Code
Education Code (44332 5
Penal Code (11105.3 L.T.V
(1596.871 L.E
certified public school
Human Resource Agencv.
daycare facility
employees.
Vehicle Code (13376 B
Education Code (44237 E
private schools.
nonprofit organization, or
other organization tpccified
by Attorney General mav
request
I
Colorado
§26-6-107
119.1 (Ml 5 residenuaJ
(19-10-115 day camp mav
child care centers.
lacilil? may request for
require for emplovment
pre schools.
emplov ment .
(26-6-107 Dept ma> require
Dept. may require licensee
for licensee
to obtain.
(19-10-115 child care center
may require for
employment.
Connecticut
(54-I42K Dept of Human
(14-44 8
1*4-142 Dept of Children
(54-I42K convicuon
Resources may request for
and > ouih may request on
informauon available to
child care center or home
k>»rme or lostcr parents.
public: any organization
licensee.
providing services to
children may request.
KEY
B » bus drivers
E * all employees who have direct contact with children
L ■ licensed owner, operator, or administrator of a facility,
home, or organization providing services io children
O = 4hrr\ «»*• hjve j*.- cess to children tn care
T = ie*,net* • * rrrvmnel with supervisory control
V = - .lunterrs
33
SUM
Daycare
_
Foster Care aad I Other Orgaautauons or
Residential Facilities | Individuals
Delaware
1309 E.V
residemial care facility.
adoptive and foster parents
.
p
1
i
District of
Columbia
Title 5 Chapter 10 DC
Municipal Regulations E
I
i
i
|
Florida
&4023055 IM02.3I3
LEO
child care centers and
homes
5231 17 T
certified personnel.
1393.0655 J409I75 E.V
residenual facilities and
foster homes
♦409 1 75 E.V
summer day camps
Georgia
*4<J-5-*2 LE
child care center? and
homes
449-5-1 II T
political subdivision may
require.
f49-5-62 L.E
child care institutions.
♦49-5-11 T
any organization providing
services 10 children may
require
Hawaii
$346-151 ft leq L.E
child care centers and
homes
Dept of Education
Personnel Policy Regulation
4346-17 LE
foster homes.
1352-5.5 stall members of 1
youth correctional facilities
i
1
i
Idaho
539-1105 L.E.V
child care centers and
homes
1
i
Illinois
Ch. 23 para. 2214 1 L.E
child care centers and
homes
Ch. 122 para. 34-185 E
Ch. 122 para. 10-21° E
Ch. 95 1/2 para. 6-106 1 B
Ch 127 para. 55a any
organization providing
services to children may
request
Indiana
J1M7J-J-J L
child care center
5IM" 5-5-3 L
child care home
S5-2-5-5 E.V
child care center or home
operator may request
i
i
1
i
1
KEY
B = bus drivers
E x all employees who have direct contact with children
L = licensed owner, operator, or administrator of a facility,
home, or organization providing services to children
O s .<ih«T\ *rn. have access to children in care
T = leja-her-. .»r personnel with supervisory control
V = t.Huniecrs
34
State
!
Daycare
Schools Foster Care and
| Residential Facilities
Other Organizations or
Individual*
Iowa
$237A5 L.E.O
child care faciliry
1237.8 L.E.O
foster care facility
II25H.7 LEO
medicaJ msuuition for
children
»w:.: e.v
youth service agency
approved bv Commmioner
of Public Safety, may
request
Kansas
*65-5lh E.V.O
child care home
$65-516 E.V.O
boarding home for children
1
1
1
i
Kentucky
§17-165 T
child care centers
5160 380 T
public schools
$17,160 T
any organization providing
services to children may
request
Louisiana
$46:51 : TV
child can: centers or homes
117:15 E.B
$15:825.3 L.E
juvenile detention
correction, or treatment
facility
$46 51 2 LXO
foster home.
1
$15 587 1 T
any organization providing
services to children ma>
request
$46:51 2 TV
any organization thai Oept
of Public Welfare determines
has authority over children
nuv request
i
Maine
1
Tit. 22 98301 L.O
child care homes
Tit. 16 $615 convicuon |j
informauon available to the
public
Maryland
1
i
FL 1.5-561 L.E child care
centers
V child care centers may
require
L.E.O child care homes
FL §5-561 E public and
private schools
V public and private
schools may require
FL $5-561 L.E child care
institutions
V child care institutions
may require
L.E.O foster homes
il
FL 55-561 E an>
organization providing
services to children may
require
L.E sute recreation centers
and day or overnight camps
V state recreauon centers
and day or overnight camps ;
may require.
il
. Massachusetts
1
|
102 CMR 7 00 L
child care centers.
Ch *> 08A B
il
i
1
Michigan
i
Hi :49i|3i all persons in
house McCrutf House
Minnesota
S245A03 L.E.O
child care ceniers and
homes
J245A03 L.E.V.O S245A.03 LX.V.O
public and private schools j residential facilities.
I245A.03 LE.V.O
recreation programs
I
KEY
B = bus drivers
E = all employees who have direct contact with children
L = licensed owner, operator or administrator ol a taciltry.
home, or organization providing services to children
O s •inm »*.> njve access to children in care
T = iejk nen. ••* personnel with supervisory control
\ = wiunteerv
35
Sum
Daycare
Schools
Foster Care and
Residential Facilities
Other Omaniiai ions or
ladividiiab
Mississippi
♦43-20-8 L.E
child care centers
(4!-:0-S LEO
child care homes
§45.31-1 «ie« E.V
any unit of gov thai renders
services to children may
request
$45-31-1 ttttq, E.V
an authorized business,
nonprofit or volunteer
organization, and any unit
of gov that provides
services to children may
request.
445-31-1 et teq. an
authorized business,
nonprofit or volunteer
organization, and any unit ot
gov that provides services
io children may request
Missouri
H3540 E.V
child care centers or homes
may request.
J43 540 E.V
public or private school may
request
443.540 E.V
foster care home may
request
443-540 E.V
an> association which
provides services to children
may request
Montana
I
1
Nebraska
571-1903 LE.O
Dept. of Public Health and
Safety may require for early
childhood programs
Nebraska Dept. of
Education Rule *9I
004.0 IF
recommended for bus
driven.
§71-1902 LE.O Dept. of
Public Health and Safery
may conduct for foster
homes
t
Nevada
H32A.I70 LX.V.O
child care facility.
JI79A200 E
gov. agency or political
subdivision may request
1391033 T
$391,100 E
4424.031 LI.O
foster homes.
J179A200 E
person providing services to
children may request
II70A.I75 L.E.V.O
outdoor south program
New
Hampshire
II70-E7 E
child care centers and
homes.
4170-E29 E
foster homes and residential
facilities.
New Jersey
PL. 1991 ch. 278 LE.O
family daycare homes.
|l8A:6-il3 E
nonpublic school may
require.
II8A390I7 B
J18A6-7I EB
public schools.
New Mexico
J32-9-J LE
child care facilities.
128-2-3 E
state or any political
subdivision may require.
432-9-3 L.E juvenile
detention, correction, or
treatment facilities
528-2-3 E
viate or political subdivision
mj\ require.
KEY
B = bus drivers
E 3 all employees who have direct contact with children
L ■ licensed owner, operator, or administrator of a facility,
home, or organization providing services to children
O = others *n«< have access to children in care
T = iej»,her\ or personnel with supervisory control
V = vntunieers
36
z
Hatbrmaat Facaaaaat
Otarr OrnauMMM ar
Indxidaub
Social Services Code M>j
LXV
Vehicle an
»SO»-d ■
I T." .
Social Services i.xx
lower homes and aoocmr
Social Services Ccoc M24-i
L.E-* camp>
tllO-UO I
child care centers and
♦JO-ll i-OJ LE.0
(»l! I-0a: lisunt in
child care rerisirv n
loawir. *.n\ person mav
venrv it a care provider b
■Baal
I I5ICU09 LE
OHM C it GH HH
4510* 09 LE.O
dkld care nomev
Tu 10 *404 l E
CHI EMI DBWL ' v" » "V "~J >
Tit ?0 I5-U2 E
rocaj Board of Educanoa
-j • request
Tu 10 H04 l E
rrsioeticiAi child care
racit.rt
WIS 820 Lt\0
rru\ be required lor child
§242-550 may be required
for cusaoduos « pubiK
nook
H1S82C LE
juvenile deaesoon.
ciMiCLUon. or creatmeni
facility
(181 537 ma* be required
for adoptive parent*, rosier
care homes, or state
residential taci lines
?rr. Mil 1
Ttr. 23 M>.U4 E
Til 24 Jl-Ill E
PuMk and private schocJv
T,i I? *6.U4
toster care homes and
adoptive parents
T I ;.• w.vu E
anv ortaruzauon providing
services to children
MO-13-22 LE
child a
jlo-48-2 pnvaar schcoii
Saath Carotaaa
130-7-rTJO LE
ejl ■ cat. cer-c-s 1.1:
IW-26-40 T
public schools
Saath Dakota 126-0-149 LXO
child can home mas
request-
KEY
8 * bus drivers
E x ail empsovees who have direct contact »iih children
L = licensed owner, operator- or admimsiraior of a tacilirv.
home, or orearuzaoon providint services to children
;> = aai
T * e*
\ ■
• r». ftjve access to children in care
• • » personnel »ith supervisory control
37
Stat*
Foster Car* and
ReudenuaJ Faculties
<Hh*' C
ladi*»duaii
449- 5-406 T
muw discio-e background
I37-I-4M
§7l-J-529 E
adoptive parents foster
nome; and residential
faciiiuei
Human Resources Code
»22-U06 LEO
child care centers and
homes mav require
Educ Code §21 914 E
puonc schools
111.064 E
School for the Blind
§ 1 1 J>33 E
School for the Deaf
Human Resources Code
62: 006 fouer homes and
adoptive parents ma -
request
Human Resource- Cuue
*80 00 * tool ia*
enforcement mav obtain on
rtesffhoornood child *atcn
program parucipanu and on
VicGruff H Aj-rf resident*
122-006 ma> require lor
Bif Brothers. B>e Sisters
Home Hcaj'Jt Care
Providers, and cour-
appointed special advocate*
'CASAt lor aouied or
neglected children
I53A-3-II0 E.V
School Board mav require
»63 1-198 LO
child care centers and
♦63 1-198 1 E
licensed child care centers
and homes
♦63 1-198 2 E.V
unlicensed facility may
■fM
163 1-196 04 voiumarv
registration of small family
davcare homes
122 1-296 2 E
*63 1-198 1
foster homes and adopuvt
Washington
f*3 4?830 E.V
child care centers and
443 43 830 noncerufied
personnel
I28A70 140 certified
personnel
443 20A 710 state
employees in positions
responsible for supervisi
*.an. or treatment of
fch(idren
443 43 830 E.V
am orcamaation thai
provides services to children
younger than the age of 1 6
West V
449-2B-8 U£
child care cemers
(15-2-24 tov acencKr
may receive informal mwi
from crirranaJ *demif»*.ai»in
vjw :b i LE
private residential facility
155 06 L
child care centers i
(55 06 L
day camps
KEY
B ■ bus drivers o
E * ail employees who have direct contact with children T •
L ■ licensed owner, operator, or administrator of a laciliry \ -
home, or ortanuauon providing services to children
•*- * % *j*r access to children in care
rat*rr* <n rr«-«inel with swrjernsors control
38
Ms. Miles-LaGrange. I would like to make just another com-
ment and then I will wind up and will be happy to try to respond
to questions.
I mentioned those additional things that are going to be abso-
lutely necessary if we are going to ever really effectively squelch
chila abuse across this Nation. In Oklahoma, we have taken a
number of steps that actually parallel the goals of the National
Child Protection Act.
For example, applicants for family day care are checked against
the department of human services child abuse registry. Then there
are four references required for staff and day care centers. Then
staff and centers must have training on the mandatory reporting
of child abuse. Then parents are additionally informed through an-
other publication on how to detect and report suspected abuse and
parents are encouraged to examine the child care provider's licens-
ing files, which are open records.
As I mentioned, we have recently amended our law there to man-
date criminal background checks for applicants for employment in
both day care centers and family day care homes. And that back-
ground check may include a search of the department of corrections
sex offender registration file, and currently those checks are by
name.
Teachers can undergo a national fingerprint check through the
FBI. However, the records from the FBI that our State currently
relies on for checks may only have a 50- to 60-percent disposition,
because, for the most part, tne States must submit the information
to the bureau before a disposition can be made.
We are very encouraged by both the spirit and the intent of H.R.
1237, and I cautiously say that by targeting only a fraction of the
problem of child abuse, we don't want to risk over promising, be-
cause even at the target of 80 percent, final disposition in this bill,
as we all know, that remaining 20 percent would pose a risk. But
more importantly, I think it is crucial to bear in mind that many
of those who will abuse children do not necessarily have prior
criminal records.
In closing, I would say that we applaud the fact that the use of
background checks for noncriminal justice purposes is permissive.
Certainly the bill creates requirements in the language of the pro-
posed guidelines that in at least some instances may hinder the
flexibility of States to respond to their particular needs.
With that, I will stop and try to respond to questions.
Mr. Edwards. Well, thank you, Senator. That was a very helpful
statement.
[The prepared statement of Ms. Miles-LaGrange follows:]
Prepared Statement of Vicki Miles-LaGrange, Senator, Oklahoma State Leg-
islature, and Chair, Oklahoma Senate Judiciary Committee, on Behalf of
the National Conference of State Legislatures
Good morning. My name is Vicki Miles-LaGrange. I am the Chair of the Okla-
homa Senate Judiciary Committee. Before serving in the legislature, I served as a
state prosecutor and saw first hand the frightening toll that abuse exacts from our
nation's children. These experiences have come together in my service as a member
of the Oklahoma Senate. Since elected in 1986, I have sponsored a variety of bills
aimed at improving the safety of our children. This year we made mandatory the
requirement that criminal investigations be conducted for certain personnel in the
child care setting.
39
I come before you on behalf of the National Conference of State Legislatures,
where I serve as chair of the Law and Justice Committee. My purpose here today
is to bring my experience as a legislator and the perspective of my colleagues to
offer insights and raise questions about H.R. 1237, "The National Child Protection
Act of 1993."
The bill that is the subject of this hearing contains ideas that have circulated for
a decade. Background checks are seen as one way to reduce the risk that dangerous
persons will volunteer or be hired to work with children away from home. Mean-
while, states have been active in implementing some of the ideas in the bill. State
responses have varied, though, from requiring fingerprint-based background checks
for a broad variety of persons in contact with children, to voluntary name based
checks for a limited pool of applicants. The trend is toward expanding the use of
background checks.
In our testimony, we first raise questions about the scope of the mandate and the
adequacy of the funding authorized under this bill. We then stress that parts of the
bill that are intended to be permissive should avoid hidden mandates that are not
necessary to further the purposes of the bill. I will share some of my experiences
in Oklahoma to explain how we are responding to some of the needs of our children.
We believe that the common interest in creating a national network to share infor-
mation is consistent with federalism, but that states should retain authority over
the use of information within their borders. Sketches of the actions of several states
will bear out the distinction between national interest and state interest. Finally,
we will offer a few suggestions section by section to assist the committee in crafting
legislation that respects the ability of states to be responsive to their constituencies.
MANDATES AND FUNDING
This bill reinforces the trend by states to use criminal history data to reduce risks
to children cared for out of the home. The method of reinforcement is to mandate
that states create criminal history data bases that are at least 80 percent accurate
in showing the final disposition of cases for persons arrested. The bill also encour-
ages automation of criminal history records and develops guidelines for states to use
in processing nationwide criminal history background checks for non-criminal jus-
tice purpose relating to the out-of-home care of children.
Improved national criminal background checks can have significant benefits in
law enforcement. By providing an impetus for the improvement of state records, this
bill serves a useful purpose. And, states will see the benefit in expanding the net-
work of cooperation by tracking child abusers that move from state to state to avoid
detection.
These laudable goals should become national policy, however, only after the na-
tional government expresses its commitment with satisfactory and stable funding.
In order for sound policy to emanate from Washington, much greater attention
needs to be given to the costs that will be passed to the taxpayer. NCSL has led
the way in educating Congress and the public about the perils of unfunded man-
dates. Mandates cause civic impairment by separating decisions to spend from deci-
sions to tax. Citizens are uncertain which level of government to reward or blame,
and accountability in government suffers.
This bill does offer some funding. However, if the level of funding is reflective of
the commitment of the federal government to seeing the nationwide check become
a reality, we remain skeptical that this will be a true partnership. We urge the com-
mittee to confirm the national commitment to the success of the program by making
the mandate effective only upon full appropriation of an adequate level of funding.
The bill reiterates the availability of funding under the drug control system im-
Brovement grants, and offers an additional $20 million in funding for automation.
Unfortunately, it is not clear from the bill that the amounts through the set aside
and the additional grants were chosen based upon specific cost estimates showing
the actual cost states would face over the next three years to comply with the man-
date. One idea of those costs may come from my own state, where it is estimated
that to consolidate criminal history records and bring them on-line in an automated
fingerprint identification system (AFIS) will have cost $5.8 million over 3 years. We
are currently under 80 percent disposition but hope to improve quickly. Under the
Criminal History Records Improvements Programs (CHIRP) we have received
$176,500 for July 1992 through June 1994 to improve the accuracy, completeness
and timeliness of our records. Other states have farther to go. Although we are un-
able at this hearing to provide estimates, we would be willing to work with the com-
mittee to try to obtain a more accurate estimate of potential costs.
The uncertain federal commitment in H.R. 1237 is also suggested by the amount
authorized for similar purposes in H.R. 3371, the Omnibus Crime Control Act of
40
1991, which did not become law. Section 503 would have authorized $100 million
for fiscal year 1992 and all fiscal years thereafter. Under Title V of the 1991 crime
bill, the federal government authorized the funds in order to permit nationwide
background checks for persons seeking to purchase firearms. Although the users of
the system are certainly different than those proposed in H.R. 3371, the goal of im-
proving state criminal history records to make nationwide background checks fea-
sible was similar. Language of H.R. 1237 echoes much of the language creating the
national criminal background check system in Title V of that crime bill.
Another part of the federal commitment has been the continuous effort of the Fed-
eral Bureau of Investigation to develop the Interstate Identification Index. This 20-
year effort to enhance cooperation between states and the FBI has moved to the
stage where the Attorney General is reviewing a compact that will regulate com-
prehensively the use of criminal history records for non-criminal justice purposes.
While developing a system for the purposes of non-criminal justice background
checks, we should see how the needs of child care providers can be integrated into
the Interstate Identification Index.
NCSL normally objects to set aside programs in grants that are intended to give
states flexibility in developing individualized responses. The drug control system im-
firovement grants are such funds. A case can be made that the set-aside here is
inked to the development of a national program that requires significant levels of
uniformity in order to be successful. However, the problem with earmarking is that
it assumes uniform needs, and while states all need assistance, their needs are not
uniform.
The bill would withhold funds from states that are not able to meet guidelines.
This provision should be considered cautiously, not automatically, as it may have
unintended consequences. States are ultimately responsible for fulfilling all obliga-
tions, yet the individuals responsible for compliance here may be jeopardizing pro-
grams funded with the Byrne grants that are not delinquent or responsible for the
delay. Congress has authorized funds in the past for improvement of criminal his-
tory records, and then removed the support. Senator DeConcini and Congressman
George Miller sponsored legislation in 1984 to appropriate $25 million to encourage
states to require national background checks, but the next year funding was
dropped. In other programs, Congress has decreased funding for automation by re-
defining the expenditure as an administrative cost. We therefore caution that uncer-
tain financial commitment can jeopardize implementation.
We believe that the imperative of stable funding from the national government
must be met with responsible and ready cooperation from the states. It is essential
to the process of state funding that state legislators become better informed about
the nature of the program and existence of the federal commitment.
FLEXIBLE STATE REGULATION
We are encouraged by the fact that the bill has not attempted to mandate uniform
requirements regarding who may request records checks. The language of Section
3 — "A State may have in effect procedures to permit" — thankfully allows states the
option of determining what organizations will have access to criminal history
records. However, the specificity of the guidelines set out in the bill may be unneces-
sary to accomplish its goals. Because background checks are not a cure-all, it is even
more important that states retain flexibility in determining priorities even after
records are improved.
The federal government must consistently give states the tools for children's safe-
ty and maintain this commitment through the appropriations and regulatory proc-
esses. Under federal child care legislation passed in 1990, states retain the author-
ity to regulate child care.
However, during the regulatory process, restrictions were placed on the ability of
states to impose additional requirements, such as background checks, on unlicensed
and unregulated providers. In September 1991, my colleague from Oklahoma, State
Senator Bernest Cain appeared before the House Ways and Means Subcommittee
on Human Resources to protest regulations that made national administrative pref-
erences for "parental choice" the predominant factor in state regulation of child care.
According to Senator Cain, who testified on behalf of NCSL, "Current state safety
requirements such as fire extinguishers, smoke detectors, criminal background
checks, tuberculosis tests, and safety inspections may all be jeopardized." This bill
should reaffirm that states retain the right to authorize criminal background checks
where needed.
States that have provided statutes to the FBI for 92-544 clearance permit some
disclosure. Some states, however, have a greater sensitivity to issues of privacy than
41
others. Under the Constitution, they are permitted to enhance those individual pro-
tections. This legislation should studiously avoid allowing regulatory preemption of
state privacy laws. States have legitimate reasons to respond to constituencies that
demand privacy rights or fear discrimination, and thus limit the disclosure of their
criminal history records for non-criminal justice purposes.
Another reason for leaving states with flexibility is that the use of criminal his-
tory background checks is only a narrow part of the solution to providing quality
care for children. We should not set ourselves up for disappointment by expecting
too much of criminal history records. Unfortunately, the tragedy of child sexual
abuse that this bill seeks to address will continue unless we concentrate serious re-
sources at the state and national level on child abuse prevention. The National Con-
ference of State Legislatures supports the goals of the Child Abuse Prevention and
Treatment Act and believes that the federal government should renew and expand
its commitment to confronting and preventing this national disgrace.
LESSONS FROM OKLAHOMA
In Oklahoma, we have taken a number of steps that parallel the goals of the Na-
tional Child Protection Act. Applicants for family day care are checked against the
Department of Human Services child abuse registry. Four references are required
for staff in day care centers. Staff in centers must have training on the mandatory
reporting of child abuse. Parents are informed through a publication on how to de-
tect and report suspected abuse. Parents are also encouraged to examine the child
care provider's licensing files, which are open records.
We also recently amended our law to mandate criminal background checks of ap-
plicants for employment in day care centers or family day care homes. The back-
ground check may include a search of the Department of Corrections sex offender
registration files. As yet, these checks are by name. Teachers can undergo a na-
tional fingerprint check through the FBI. The benefit of the name check is that it
is less costly and more timely than a check through the FBI, which can take weeks
or months. The records from the FBI that we now rely on for checks may have only
a 50-60 percent disposition, because for the most part the FBI must rely on states
to report the dispositions.
Thus, we should be wary of expecting too much from H.R.1237. By targeting only
a fraction of the problem of chila abuse, we risk overpromising. Even at the target
of 80 percent final disposition in this bill, the remaining 20 percent would pose risk.
But more importantly, it is crucial to bear in mind that many of those who will
abuse children do not necessarily have prior criminal records.
In January 1990, the Joint Legislative Advisory Task Force on Child Care issued
its report, "Building Better Child Care in Oklahoma." As a member of the Task
Force I became well acquainted with massive demographic changes that rapidly ex-
pand the need for services for children outside the home. The conclusion of the Task
Force was that "[t]he single most important factor that will increase the quality of
care for children in child care facilities is the training of the child caregiver.
Related to training and to the issue of obtaining background checks is the fact
of substantial turnover in the child care field. We found in Oklahoma that "[i]n any
given year, 42 percent of the staff in early education and child care programs and
59 percent of providers in family day care homes will leave the field." Although the
overwhelming majority of employees take these jobs because of their sincere concern
for and love of children, most are paid minimum wages with no benefits. One effect
of the turnover is that employers need to have the ability to hire promptly in order
to maintain quality that comes from even minimal staffing. A more significant effect
of the turnover is the toll on the children. While infants and toddlers have special
needs for stability, the child often faces adjustment to two or more caregivers in a
year.
We ask that members of this committee continue to recognize that each state
struggles with the best way to protect its children while providing affordable care.
Passing the costs of the checks on to the clients makes child care inaccessible for
some. When we mandate safety precautions from fire exits to child/staff ratios, we
are always confronted by cost issues. Although some of our decisions are made easy
because the costs are minimal compared to the risks entailed, others do not come
easily.
Even though the cost to conduct the search may be borne by the applicant under
the bill, volunteer organizations that are compelled to conduct the background check
could find that cost unacceptable and thus pass the cost along to the volunteer. The
potential volunteer that is recruited to give a valued few hours each week, may feel
that a criminal background check is insulting, costly, or too much trouble to pursue.
There is always the possibility that unnecessary requirements could have a chilling
42
effect on perfectly able and energetic volunteers who are needed to fulfill community
needs. That is why it is important that the bill leave the choice of requirements for
background checks to the states.
It is in these difficult debates that the value of federalism is most pronounced;
as states, we can innovate without putting the nation at risk. The principle of re-
serving power to the states can reinvigorate accountability and responsiveness in
government.
STATE ACTIONS RELATIVE TO BACKGROUND CHECKS
The national interest in supporting the accuracy of the nationwide check is fur-
ther underscored by the fact that nearly every state uses the FBI search for clear-
ance of persons entrusted with money, property or people. According to the Federal
Bureau of Investigation, 31 states now have laws that allow some entities super-
vising children to seek fingerprint background checks. In order for a state to partici-
pate in this program, it must submit an authorizing statute to Attorney General for
approval.
Allowing states to choose to initiate various safety precautions including back-
ground checks is an important way for states to remain responsive to their constitu-
encies and to innovate. On the other hand, consistent movement toward allowing
nationwide background checks suggests the national interest in each state's reach-
ing for a national disposition rate and standard of automation. The brief look at the
states represented on this committee shows the variety of approaches to security for
children cared for away from home.
In the chairman's state of California, the background check system has been in
Silace for twenty years for public school teachers. California does fingerprint checks;
or those residing in the state for more than 3 years an in-state search is done, oth-
erwise the FBI search is also completed. Although California is largely automated,
it places its disposition rate at 50 to 60 percent. With 550,000 applicants in 1992,
the state raised $17,600,000 in revenue.
Massachusetts does not yet authorize the use of FBI checks but there is legisla-
tion pending to require background checks for some purposes. Right now, licensed
day care is required to do background checks as a condition of licensure, but these
are only name checks.
In North Carolina, a bill now in committee would mandate fingerprint criminal
record checks of child day care providers and their spouses. Currently, the state is
prepared to do only name background checks, as it does for teachers at the discre-
tion of school districts. North Carolina charges $14 for a fingerprint check and does
not consider it a revenue raiser. This state's disposition rate is near 90 percent.
Following the pattern of other states, North Carolina is taking other measures to
improve the quality of child care. In the most recent session, it strengthened the
ability of inspectors to make unannounced visits at centers, clarified revocation of
licenses and improved fire prevention standards.
Florida, which has an open records law allowing private citizens to ask for a name
check, is a pilot state for the National Fingerprint Pile project being developed by
the FBI as the next step beyond the Interstate Identification Index. Florida has au-
thorized criminal background checks for child care personnel since the early 1980's.
It has authorized FBI fingerprint checks for child care facilities, mental health fa-
cilities, treatment personnel including volunteers for alcohol and drug abuse treat-
ment for minors and juvenile delinquency personnel. School boards retain discretion
whether to require background checks for volunteers, cooks and other persons. For
teacher certification, Florida charges a $15 fee on top of the FBI's $23 fee. The state
check can now take eight to twelve days, and the federal fingerprint check can add
a couple months to the process.
Texas, like Florida, allows its Department of Human Services to do national
checks on owners and employees of child care facilities, residents of registered fam-
ily homes, persons providing adoptive or foster care for children in the custody of
the department, volunteers in Big Brother/Big Sister programs and more. A recent
Texas law allowing criminal background checks for volunteers will create substan-
tial new costs and pressures because of the possible burden of thousands of new re-
quests. Under the law, the Texas Department of Public Safety has authority to pro-
vide background data to one volunteer agency in Dallas that refers 66,000 volun-
teers to 760 agencies.
Dlinois provides for name checks and fingerprint checks. Illinois has authorized
national checks for child care licensees, school district employees, bus drivers and
private adoption applicants. The fees range from $5 to $10 and are not considered
a revenue raiser.
43
Colorado also has name checks for private citizens to use, and fingerprint checks
for certified teachers and day care personnel. The fingerprint checks include na-
tional checks of applicants for a license to operate family care homes, residential
child care facilities, child placement agencies and child care centers. Convictions of
violent or sexual offenses, drug sales, or an offense which as an "adverse reflection"
on the individual may bar child care employment.
New York does not do name checks, but has moved toward the Automated Finger-
print Identification System. The checks cost $25 plus a $25 surcharge in addition
to the applicable FBI fee, which is $23. The FBI currently is authorized by state
law to provide background checks for school bus drivers and attendants, as well as
for employees of the New York City school system.
As illustrated above, states show a range of choices in the structure of their back-
ground checks, the populations covered and fees. States with large urban popu-
lations such as New York and California may opt to charge higher fees that offset
expenses from a high volume of applications and from greater computer memory re-
quirements. As each state moves to improve its program and to add persons to the
list of those being checked in the nationwide system, the federal government,
through the FBI must be prepared to respond promptly.
SECTION BY SECTION COMMENTS
The following comments are made to assist the committee in crafting a better bill.
In general, principles of federalism — accountability, innovation and responsive-
ness^— should deter the committee from regulating the details, where goals and ob-
jectives can be achieved by alternative means.
SECTION 2
The Attorney General is given authority to investigate "the records" in each state.
What is probably meant is that authority is given to investigate the system, other-
wise this seems to be a rather staring reach of federal authority into state records
for non-criminal justice purposes. (bX 1XA).
Asking states to have an "on-line capacity" is not clear. Although the context
seems to suggest that states are able to participate in retrieving information, the
law should make clear that only those criminal justice agencies authorized to dis-
seminate and collect information are expected to be on-line, and then only to the
FBI. (bXIXA).
The Attorney General is given plenary authority to establish guidelines for report-
ing and indexing information. (bXD(B). The law should make explicit that these
guidelines are to be prepared in consultation with states. Specifically, representa-
tives of legislatures and courts as well as data repositories should be included in
the process early to improve chances for success. Final disposition relies upon infor-
mation provided from a variety of sources, including law enforcement, prosecutors,
courts and correctional facilities.
Also, the bill should perhaps take cognizance of the fact that significant work has
begun on this issue by the Advisory Policy Board as they move toward a national
fingerprint file. The issue appears less complex on paper than is actually the case.
Sufficient consideration should be given to the costs of harmonization as states may
be required to change much of their record-keeping.
Under (bX2XA), states are given 3 years to have an 80 percent disposition rate
in computerized records on child abuse crime cases. How does this harmonize with
the need for accurate disposition on all background check crimes? The statute de-
fines them differently. Presumably, for the system to be effective, all background
check crimes must have the requisite disposition. That is why the cost of making
the system work must include more than the narrow focus of child abuse offenses.
Research should be targeted for use by state policy makers. The study of child
abuse offenders to be done by the Office of Juvenile Justice and Delinquency Pre-
vention should be interdisciplinary, not neglecting issues of health, mental health
and education.
SECTION 3
Section (a) mandates that agencies respond promptly. We urge avoiding language
that could encourage disputes, unless there is substantial evidence to suggest that
agencies do not respond promptly to requests. Remember that failure to respond to
a noncriminal justice inquiry can be caused by criminal justice demands on the sys-
tem. The bill could unintentionally cause legal disputes over the priorities given law
enforcement and other users of the system.
44
Also, we would be concerned in section (a) whether the permission to determine
convictions and provide that information would by negative implication prevent
states from acting on information that does not show a conviction. Again, we expect
that the effort to grant states authority that they already have ana are exercising
regularly may end up with the unintended consequence of prohibiting state prac-
tices intended to increase the security of children. For instance, would a state be
prevented from acting on a person who is on pre-trial release or diversion programs?
This section becomes quite detailed. We urge that Congress not include the man-
datory language throughout the guidelines, especially because the use of the system
itself is permissive. Perhaps states will develop different approaches to providing ac-
cess to the system for persons with different levels of supervision of children.
Guidelines of the Attorney General should only be made in consultation with state
policy makers, and not merely with criminal justice or child care specialists.
Under (C) the agency is to respond within 15 days. This mandate may not be fea-
sible in some instances. The delay may not necessarily be from the state agency.
They should not sacrifice accuracy and thoroughness to speed. Different applicants
might also have different priorities within a given state. The bill should not lock
states into arbitrary and unnecessary requirements.
Section (DX2) prevents the report of the authorized agency from being the sole
basis for determining the fitness of the provider. Some states might prefer to have
the flexibility to assume that after going to the trouble and expense of making the
national background check, one should be permitted to act on that information.
Under section (E), the details may not need to be set forth in this legislation. Dis-
putes may arise between the authorized agency and the entity seeking to qualify
a provider. If entities are not given full information, then the judgment of what is
necessary to fulfill the purpose of the Act is left with the criminal justice agency.
Because there may be legitimate and useful distinctions regarding the amount of
information necessary, states, and not the Attorney General, should be given flexi-
bility to make such decisions.
Under (F), an entity may choose to deny unsupervised access until determination
of validity or the provider has waived the right to make a challenge. The language
of the statute, however, does not seem to leave the entity the right to deny employ-
ment once the validity is called into question or the waiver is not granted. This
seems to put the hiring agency in a bind. The language should ensure that all rea-
sons valid under state law not to hire a person are still valid. Again, the existence
of contending values suggests that the federal guidelines should be limited, or that
the states should be given flexibility in this area.
Section (bX2)(I) limits liability where an adverse decision is made on a provider.
What controls the liability where a decision is made on incorrect information pro-
vided from the system where the decision is favorable to the provider?
SECTION 4
Section (b) The statistic to be followed by the Attorney General to determine sup-
plemental grants is identifiable child abuse cases. Yet the act has separate defini-
tions for child abuse cases and for background check offenses. The nationwide check
used is to identify more than child abuse cases promptly.
Section (c) allows the Attorney General to penalize states that have not kept with
the timetable of the act. The power to penalize takes effect within one year, but the
timetable under section 2 of the act allows states three years to achieve 80 percent
disposition. The Attorney General, however, has 180 days to work out a time line
with the states. States face potential penalties even though the federal delay may
be partially responsible for the failure to meet deadlines. The best way to ensure
that states meet mandated guidelines is to fully fund the program. Therefore, no
penalties should apply unless and until the authorized funding is fully appropriated.
SECTION 5
"Background check crime" should be flexible to meet state definitions. A minimum
level can be set to provide some uniformity, yet some states may wish to include
other offenses that warrant attention. Listing specific crimes that may be predictive
of bad behavior may be interpreted as a limitation.
"Child care" definition seeks to be inclusive, but can bring the usefulness of the
act down under its own weight. States have experimented with a variety of defini-
tions concerning what level of care is deserving of fingerprint background checks.
Adding volunteers can add significant costs. By applying the same guidelines to all
state statutes allowing release of information, states lose the flexibility to determine
which volunteers are in a position sufficiently responsible to request background
checks.
45
CONCLUSION
The National Conference of State Legislatures shares this committee's concern
that the care of our children is a major priority. Innovative solutions should be tried
to arrest instances of abuse that threaten their well-being. In shaping these solu-
tions, it is still necessary to respond to the taxpayers and to inform them of the real-
istic benefits. As legislators, we should respect the principle of funding our promises.
As actors in the federal system, we can build a safer country while respecting the
benefits of allowing states the right to be innovative and responsive.
Mr. Edwards. I think it is very important, one point you made
in particular, which is that because a child day care center has an
applicant who does not have a criminal record, that doesn't mean
that it should substitute for a careful investigation of this person's
background through references all other ways of investigation, be-
cause that is certainly not definitive, that the FBI does not have
a criminal felony record of an individual.
Mrs. Schroeder.
Mrs. Schroeder. Thank you very much, Senator.
Your testimony, as I knew it would be, is very helpful. We are
pleased that you are supportive and that NCSL is supportive, and
thank you.
I think your caveat about how this is only a portion of what we
can do about child abuse, is absolutely correct. The first bill I intro-
duced when I got here 20 years ago was on child abuse, and I am
still fighting that.
It is amazing how nobody wants to put resources out there.
Thank goodness for Hawaii and Healthy Start. They seem to be the
only ones with the real commitment to put the money down.
In the interim, we have to work in the world we are in and try
and figure out what we can do to stop one of the things that drives
people crazy, that is when they read about somebody abusing chil-
dren who had a record in other places, and this is one thing that
we could have stopped.
We realize this is only a piece of what we need to put together,
but we need to put it together and keep working on it. We have
gone through this with child support enforcement, too, and we get
into this very awkward Kabuki theater type of thing with the
States and the Federal Government. The States saying, yes, we
should all be tied together, it would help us with child support en-
forcement or with background collection. On the other hand, the
question of how we pay for it gets to be very troubling. We have
now had some States who have done a very good job, some who
have not done anything. If we suddenly federally fund the ones
who didn't do anything, then the ones who did a good job, it is like
they were foolish to have done a good job because they could have
had the Federal Government pick it up later on. We see that with
the floods, the cities who spent money and those who didn't.
I hear you say $20 million is not enough. How would you deal
with that at this level as we try to get States and the Federal Gov-
ernment to work better together?
What is a fair allocation? The Federal Government can't pick up
100 percent of everything, but what is it reasonable for a State to
contribute. The State benefits by this, too. It speeds up their crimi-
nal justice system.
Ms. Miles-LaGrange. Congresswoman Schroeder, I may go at it
another way for purposes of trying to get to where you are trying
46
to get with this bill. I think it is critical because of the situation
that you have described, with just kind of a hodgepodge where
States are at different points and different levels in their automa-
tion, in their collection of dispositions, and so forth. I think for pur-
poses of this bill, if this measure is really going to be effective, we
need to be acting, or you need to be acting on good information, the
best information that you can possibly get, about where the several
States are in this process, about what the anticipated costs — the
scenario I gave you just by way of illustration, about where Okla-
homa has to get to, where it is now and where it has to get to,
those were fairly quickly collected numbers and are certainly not
hard and fast.
I think we need to know what we are dealing with, first, in terms
of dollars, and then we can be more effective in kind of plugging
in, if you will, to other existing measures. I think it was in the
1984 legislative session, Senator DeConcini and Congressman Mil-
ler sponsored legislation to appropriate $25 million to encourage
States to require national background checks. But the next year,
the funding was dropped.
In other programs, which conceivably this effort could be tied
into — that is the criminal background checks for noncriminal jus-
tice purposes — we just need to get a better reading. I think that is
where I would start.
You can share my response, Congress woman, but I think that is
where we have to start if we are going to try to get an effective
handle on it, because your resources are limited, as the States' re-
sources are limited. We are crying saying, don't send the mandate
without the money, which you know, we know that you do the best
you can in that regard as well. But trying to get a real handle on
it, I think, is a critical first step.
Mr. Edwards. I think, Senator, that we all, at least on this com-
mittee, agree with you 100 percent, that the Federal Government
should not mandate programs and not pay for them. Certainly in
the criminal justice area, the same rule should apply. There is no
disagreement on that issue whatsoever.
Mr. Canady.
Mr. Canady. Thank you, Mr. Chairman.
Senator, we really appreciate your being here today. I think your
comments have been helpful to us and you have highlighted some
issues that are of critical importance; the issue about what this will
really cost, and getting to the bottom of that issue I think is
important.
I don't say that we can move forward with trying to implement
something until we have a clear idea of the cost involved for the
States. It is easy for us to sit here in Washington and pass laws
and leave it up to the people in the States to bear the costs. I don't
think we should go about business that way.
There is another issue that I want to raise about the bill. There
is a concern brought to my attention, the broad coverage of the per-
sons that would be considered child care providers. The bill has a
definition of qualified entities, and basically that involves any orga-
nization, whether it is private or not-for-profit, which provides child
care, and child care is defined in the bill as, "the provision of care,
47
treatment, education, training, instruction, supervision or recre-
ation to children."
As one example of the possible application of this, it occurs to me
that would include Sunday school teachers, for instance. Now, do
you have any response to that, or any thoughts on that broad defi-
nition in the bill and whether there might be some things we could
do to tighten the focus of this somewhat, not to exclude individuals
where there is a substantial risk to children, but I don't know that
we really want to include Sunday school teachers in this type of a
program. I have serious reservations about whether that would be
acceptable and would work.
Ms. Miles-LaGrange. I guess my response, Congressman, to
that would be that on behalf of the National Conference of State
Legislatures, I think it is very important to leave the choice to as
great an extent as possible, the choice of requirements for back-
ground checks to the States. While we can make a lot of generaliza-
tions, the mechanism of child care may be set up very differently
between State A and State B.
The cost issue, as relates to all of those people who have any-
thing remotely to do with children, I guess my argument is that
should be an issue that should be left to the States to make that
determination. I can make a similar
Mr. Edwards. Would the gentleman yield at that point?
The reason that we wrote the bill the way it was, is that the re-
quest must come from the State agency, so, therefore, the State
agency will have control over the process and we trust that States
in their wisdom will not be interested in providing information to
irresponsible or unqualified agencies, and certainly not Sunday
schools. Would that be correct, Senator?
Ms. Miles-LaGrange. That is my understanding of it, Congress-
man Edwards. But let me go on to say this. Our argument would
be that clearly leave those requirements, if there is room for — cer-
tainly I don't think that is the intent of the bill, Congressman
Canady, to include a Sunday school teacher, to have Sunday teach-
ers, to require them to have a criminal background check.
Mr. Canady. I would not suggest that is an intent of anyone. I
am just concerned about the broad language. The term "child care"
means the provision of care, treatment, education, training, in-
struction, supervision or recreation of children. A strong argument
could be made that that would include Sunday school teachers be-
cause they are involved in that kind of activity. I think that is
something we need to focus on and address.
I agree those types of issues generally can best be dealt with by
the State legislatures, given the particular circumstances in the in-
dividual States.
Mr. Edwards. I would agree with the gentleman from Florida,
that we can trust the State legislatures and that is the reason we
don't lightly license the FBI to send criminal records to private peo-
ple, private corporations, and we made that exception only for
banks and savings and loans, and probably unwisely, because
sometimes those records get out. Sometimes they are sold by indi-
viduals to other people. So these are very important records to be
kept under very strict controls and we can trust the States, just
like we think that the States can trust us.
48
Mrs. Schroeder, do you have any further questions?
Mrs. Schroeder. I want to apologize to the witness. I have been
trying to help the new Surgeon General-designate, and when
she calls, I answer. This has not been a good day. I think you
understand.
Thank you so much for being here.
Ms. Miles-LaGrange. Thank you.
Mr. Edwards. Thank you very much, Senator. You have been
very, very helpful.
The next three witnesses will testify as a panel. Lynn Swann is
president of the National Board of Directors, Big Brothers and Big
Sisters of America, and he is from Philadelphia, PA. We are
pleased to have Mr. Swann here, even though I might say, Mr.
Swann, that on quite a number of Sunday afternoons, being a fan
of the Washington Redskins, you ruined my afternoon.
Also a member of the panel who will testify after Mr. Swann —
and Mr. Potts, you can join Mr. Swann — is Lawrence F. Potts, who
is director of administration of the Boy Scouts of America from Ir-
ving, TX. And the third member of the panel is Col. Thomas A.
Handley, who is legal counsel, and he will be accompanied by
Renova Williams, director of personnel of the Civil Air Patrol, Max-
well Air Force Base, in Montgomery, AL.
Mr. Swann, Mr. Potts, and Mr. Handley, without objection, your
full statements will be made a part of the record.
We welcome all of you, and you may proceed.
STATEMENTS OF LYNN C. SWANN, PRESIDENT OF THE BOARD,
BIG BROTHERS/BIG SISTERS OF AMERICA
Mr. Swann. Mr. Chairman, committee members, counsel and
staff, on behalf of Big Brothers and Big Sisters of America, I would
like to thank you for inviting us to be here this morning.
Mr. Chairman, my mother once told me if you look past an indi-
vidual's obvious faults, you usually find a pretty good person. Now
that we know who your choice of football teams is, we know your
obvious faults. I will not hold that against you.
Big Brothers and Big Sisters of America has been around since
1904, and we are the preeminent mentoring organization in this
Nation. We have 507 agencies throughout the country. Our pri-
mary concern is to provide a service to young people across this
country, to give them a positive adult companion to help guide
them through what I feel is probably the most dangerous time for
young people that we have ever seen in our Nation; to give them
a positive outlook; to make them aware of all the possibilities that
we have in this Nation for them to grow, to experience, and to be
the best possible individual that they can be.
Today in our society our children are actually living and walking
through a war zone with the possibilities for them to become in-
jured, to die on the way to school in random shootings, young peo-
ple carrying arms, drug abuse rampant in our country, child and
sexual abuse. These are the conditions that our children are living
under.
While our primary concern is to provide a productive and positive
outlook for these young people, our one big concern has to be to
protect these children. With that in mind, as a part of our basic
49
standards and practices for all of our agencies, we require them to
do a criminal background check of all potential volunteers.
This sometimes nas been costly. Tnis sometimes has met with
great obstacles, but we have endured the cost and the burden of
getting this done. We continue to do other background checks,
interviews delving into the background of these volunteers. We
serve over 100,000 children in one-to-one relationships in the Na-
tion now. We have several thousand on waiting lists.
Volunteers are very important to us and we need more volun-
teers across this Nation, but our average is that one out of six vol-
unteers that applies becomes a big brother or big sister, because we
are absolutely concerned with the quality of the relationship and
protecting these young people. After going through an extensive
background check, the parents and the children meet these volun-
teers and the parent has the ultimate decision of whether or not
this relationship, this one-to-one match is going to be made.
And we would like to provide them with as much information for
them to make the educated and smart decision for the welfare of
their child. We are behind H.R. 1237. And we believe that like a
young child, this bill is in its infancy, and it is being conceived with
the idea that we want it to grow and be productive and to be
strong.
But as a child is born into this world, it may not yet have all
of its teeth and the power to sustain its own life. But with great
care and concern and time, we hope to make sure that the child
will grow strong and make the positive decisions and have the most
positive outcome.
With that in mind, Big Brothers and Big Sisters stands ready to
help and provide you with as much information, and stands behind
H.R. 1237 to make sure that we begin the process, something that
is long overdue and very necessary for all the child care volunteer
agencies in this Nation.
Thank you.
Mr. Edwards. Thank you, Mr. Swann. We are pleased to have
the support of your great organization.
[The prepared statement of Mr. Swann follows:]
50
Big Brothers/Big Sisters of America
Testimony of
Lynn C Swann
President of the Board
Big Brothers/Big Sisters of America
before the
House Committee on the Judiciary
Subcommittee on Civil and Constitutional Rights
Friday, 16 July 1993
Capitol Building
Washington, DC
®
230 North Thirteenth Street - Philadelphia - Pennsylvania 19107 215 567.7000 FAX 215 567.0394
51
Big Brothers/Big Sisters of America
Thank you. Chairman Brooks, for providing me the opportunity to testify before this
Subcommittee regarding HR 1237, a bill to establish procedures for national criminal
background checks.
I am Lynn Swann, president of the board of Big Brothers/Big Sisters of America, the
federated movement of over five hundred Big Brothers/Big Sisters affiliated agencies,
located in all fifty states. The Big Brothers/Big Sisters movement began in 1904 to
provide One-To-One services to boys and girls in need of additional adult support and
guidance.
Big Brothers/Big Sisters of America exists to build the capacity of local affiliated
agencies to give children and youth, typically from single parent homes, the
opportunity to experience healthy relationships with caring adult volunteers, primarily
through One-To-One services. Such relationships are the foundation for developing
the full potential of boys and girls as they grow to become competent and caring men
and women.
Mr Chairman, as you know, our nation's children face greater obstacles today than
ever before. Illiteracy, substance abuse and broken families challenge social service
organizations such as ours. Big Brothers/Big Sisters of America, however, is working
to meet that challenge by helping troubled children to lead productive lives.
The One-To-One program works. According to the Carnegie Council on Adolescent
Development, at-risk children who have successfully overcome problems "have been
shown to have at least one significant positive role model, " other than a parent. It is
this very premise on which the Big Brothers/Big Sisters movement is based, and the
reason why I appear before you this morning.
I encourage your support and adoption of HR 1237 because it will assist in protecting
the children we serve. Protecting children is our highest priority.
Selection of the most appropriate volunteers to serve as Big Brothers and Big Sisters is
a task our affiliated agencies take very seriously. We believe we have a
comprehensive approach to the selection of adult volunteers which includes
orientation, written application, at least three references, two in-depth interviews.
230 North Thirteenth Street - Philadelphia - Pennsylvania 19107 215 567.7000 PAX 215 567.0394
52
Big Brothers/Big Sisters of America
home assessment, interviews with significant others, criminal background checks and,
in some cases, psychological testing. Additionally, all applicants must go through a
child sexual abuse prevention orientation, education or training.
It is a comprehensive approach, but not foolproof. Our affiliates are required by our
Standards and Required Procedures for One-To-One Service to obtain the arrest and
conviction records of a volunteer from local, state or national law enforcement
authorities, where legally permissible. Where such records are not legally accessible
to the agency, the volunteer must provide an authentic copy of his/her arrest and
conviction records.
As you can see, a critical component of our volunteer selection process is the criminal
background check that all agencies must conduct. Some states do not permit or do not
assist with the obtaining of police checks (for example. New York and New Jersey),
while others require cost prohibiting fees; some agencies can only obtain local or
county checks.
Considering our volunteer population, typically individuals under age 35, a highly
mobile age bracket, and our wide use of college and military personnel who travel and
live in various locations, the need is to go beyond the local or state system to obtain
criminal background checks.
A few stales now require fingerprinting as a means of identification. Fingerprinting is
effective, however, we are concerned with the amount of time involved with securing
fingerprints and obtaining criminal background checks. Our volunteer selection
process (from inquiry through acceptance) typically takes approximately four to six
weeks. Our agencies in Maryland and California, for example, have experienced
lengthy delays in the processing of criminal checks. We would hope that the process
addressed in this legislation would be conducted in a timely manner so that we would
not risk losing valuable volunteers because of excessive processing time. Our
volunteers are the life blood of the service we provide and our agencies need to be able
to process these volunteers in a timely manner.
In addition to the selection of volunteers, we are most interested in the prevention of
child sexual abuse, and have developed EMPOWER, the child sexual abuse education
and prevention program designed by Big Brothers/Big Sisters of America for its
affiliated agencies. This, and other similar prevention programs, have proven effective
in educating adults and children about the threat of child sexual abuse. EMPOWER
230 North Thirteenth Street - Philadelphia - Pennsylvania 19107 215 567.7000 FAX 21 5 567.0394
53 '
Big Brothers/Big Sisters of America
offers pre- and post-program questionnaires to measure program effectiveness for each
of the six program variations.
EMPOWER can effectively be used to train professional staff, adult volunteers,
parents, teens 13 years of age and older and children between the ages of 6 and 12.
EMPOWER uses a variety of training methods that include videos, informal
discussions, group activities and games for children. Training methods are flexible
and can be easily adapted to the age and developmental level of the training
population. The program design is based on the belief that providing training for
professional staff, parents, adult volunteers, and most importantly, children and teens,
is a responsible and needed contribution toward addressing a serious issue in our
society.
While education is extremely important in the prevention of child abuse, it is also
important to deter individuals from our program who could potentially harm children.
This legislation of national criminal background checks would create a uniform and
consistent method of reporting and tracking individuals who have been involved in
child abuse crimes. As a national organization, with affiliates in all fifty states, we are
most interested in an approach on a national level that will enable our agencies to
access criminal background checks. The modest investment of dollars would pay
significant dividends, if only a few children are saved by this reporting requirement.
We urge your full support of HR 1237.
Mr Chairman, I thank you for the opportunity to appear before your subcommittee
today.
Lynn C Swann, Board President
Big Brothers/Big Sisters of America
16 July 1993
230 North Thirteenth Street - Philadelphia - Pennsylvania 19107 215 567.7000 FAX 215 567.0394
54
Mr. Edwards. We will now hear from the next member of the
panel. Lawrence F. Potts, director of administration for Boy Scouts
of America.
Mr. Potts.
STATEMENT OF LAWRENCE F. POTTS, DIRECTOR OF
ADMINISTRATION, BOY SCOUTS OF AMERICA
Mr. Potts. I, too, am pleased to be here today to represent the
Boy Scouts of America and their views on H.R. 1237, the National
Child Protection Act. I have attached to my statements some back-
ground information on the Boy Scouts of America, and also their
child abuse prevention program. I also serve as a member-at-large
on the U.S. Advisory Board on Child Abuse and Neglect, and I am
not here today representing their views on this bill.
The Boy Scouts of America has been deeply concerned about the
welfare of youth since 1910. More recently, in 1986, then chief
scout executive, Ben Love, identified child abuse as one of five
unacceptables. The others are drug abuse, hunger, illiteracy and
youth unemployment.
To combat child abuse, BSA, with the help of experts, has de-
signed a special five-point plan. The elements are: education at all
levels, adults, parents, volunteers and even youth, in the detection
and prevention of child abuse; assisting sponsoring organizations in
strengthening leader selection procedures; creating barriers within
the scouting program; encouraging prompt reporting of any alleged
incident; and taking swift action once a report is received.
Much more indepth information on our program is contained in
the excerpted article that was included in the handout materials.
Turning to the legislation, I want to give you some brief informa-
tion on scouting so that can you understand our approach to this
legislation. The charter of the Boy Scouts of America indicates that
the purpose of the Boy Scouts of America is to provide, through
other organizations, an educational program for boys and young
adults to build character, learn citizenship, and develop personal
fitness. Our method of program delivery may make us unique with-
in the ranks of large national youth programs. We don't operate
storefronts. We don't organize or operate Cub Scout packs or Boy
Scout troops ourselves.
We offer the program of the Boy Scouts of America to community
groups for them to use as part of their own youth work. Today
there are more than 85,000 community organizations who use the
scouting program. An example of such an organization would be a
local church or a school PTA.
These local community organizations operate more than 124,000
Cub Scout packs, Boy Scout troops and other scouting units. In the
operation of these units, these organizations provide more than 1.1
million registered volunteers. They are the community organiza-
tions which will be faced with this criminal background checking
legislation once the States pass these laws.
Without these organizations, or their volunteers, our program,
which serves more than 4.1 million youth, could not exist. The
challenge that many of these organizations and other organizations
face today is finding adequate volunteers, particularly in the inner-
city programs. The volunteers are very difficult to find. While we
55
applaud your efforts to attack a very serious societal problem,
while we all agree that one case of child abuse is one too many,
child sexual abuse in institutions like schools, like churches, like
nonprofit youth organizations, and like day care centers, probably
amounts to less than 20 percent of the total child sexual abuse in
our society. And sexual abuse is only 14 percent of all reported
child abuse incidents.
Volunteers in youth programs are already stretched in terms of
time and cost of participation. Many mothers and fathers will sim-
ply be unable to pay the additional cost involved in obtaining fin-
gerprints or background checks. Some might expect that organiza-
tions should pay, but local PTA's and churches don't have the kind
of funds to pay for 20 volunteer leaders who would be involved in
a Cub Scout pack.
It is undoubtedly true that many worthy volunteers would simply
not wish to subject themselves to being fingerprinted. The cost in
the loss of volunteers would be significant with most estimates run-
ning from 20 to 30 percent. And the loss of volunteers will trans-
late directly into a loss of programs for youth.
Some have thought that making the fingerprint background
check optional for the organization will make it easier on volunteer
organizations and I would point out, however, that this legislation,
if passed by the States, using the language that you have put up,
would establish a legal standard of care. And that standard of care
would have to be followed by all organizations who would otherwise
suffer massive civil justice damages in the event of an abusive
incident.
And unfortunately, experts have indicated that criminal back-
ground checks identify in advance nothing more than a small mi-
nority of those that are predisposed to molest a child. I have ad-
dressed my concerns with you today briefly on the legislation with
respect to volunteers.
This is because BSA is primarily a volunteer movement and be-
cause we believe that there are some important distinctions be-
tween employees and volunteers. We believe that the focus of this
legislation should be the employee who has an economic interest in
their position.
In the event that this legislation goes forward, including volun-
teers as it does now, I would ask that it include language that vol-
unteers and their organizations should be exempted from paying
for either the fingerprint process or the criminal history check.
I thank you for inviting me here today.
Mr. Edwards. Well, thank you, Mr. Potts, and I am pleased that
you emphasized that there must be investigation. A clean criminal
record is no substitute for an investigation.
Mr. POTTS. We completely agree with you, Mr. Chairman. And
we are also concerned that many people would look at this as the
solution, the panacea, and will not do the other things that need
to be done.
Mr. Edwards. Well, thank you.
[The prepared statement of Mr. Potts follows:]
56
Prepared Statement of Lawrence F. Potts, Director of Administration, Boy
Scouts of America
My name is Lawrence Potts. I work for the Boy Scouts of America in the capacity
of Director of Administration. I am pleased to appear here today representing the
Boy Scouts of America and their views on House Bill 1237, National Child Protec-
tion Act. I've attached to my statement some background information on the Boy
Scouts of America and also on their Youth Protection Program
I also serve as a member-at-large on the U.S. Advisory Board on Child Abuse and
Neglect. I am not here today representing their views on House Bill 1237.
The Boy Scouts of America has been deeply concerned about the welfare of youth
since 1910. In 1986 then Chief Scout Executive, Ben Love, identified child abuse as
one of "Five unacceptables" to BSA. The others are drug abuse, hunger, illiteracy,
and youth unemployment. To combat child abuse BSA, with the help of experts, has
designed a special five-point plan. The elements are: (1) education at all levels on
the detection and prevention of child abuse, (2) assisting sponsoring organizations
in strengthening leader selection procedures, (3) creating barriers to child abuse
within Scouting, (4) encouraging prompt reporting of any alleged incident, and (5)
taking swift action once a report is received. More in-depth information on the BSA
program is contained in the excerpted article which is included in the handout
m fltcri q. 1 s
Turning to the legislation I want to give you some brief information on Scouting
so that you can understand our approach to the legislation. The Charter of the Boy
Scouts of America indicates that the purpose of the Boy Scouts of America is to pro-
vide through other organizations an educational program for boys and young adults
to build character, learn citizenship and develop personal fitness. Our method of
program delivery may make us unique within the ranks of large national youth pro-
grams. We don't operate store fronts, organize, or operate Cub Scout packs and Boy
Scout troops ourselves. We offer the program of the Boy Scouts of America to com-
munity groups for them to use as a part of their own youth work. Today more than
85,000 community organizations use the Scouting program, operating more than
124,000 Cub Scout packs, Boy Scout troops, and other Scouting units. An example
of such an organization would be a local school PTA or church. These community
organizations provide more than 1.1 million registered volunteers. These are the
community organizations which would be faced with the criminal background legis-
lation. Without these organizations and their volunteers, our program, which serves
more than 4.1 million youth, could not exist .
The problem that many of these organizations face today is finding adequate vol-
unteer leaders. The kids are there, but volunteers are more difficult to find, particu-
larly in the inner cities. On the one hand we applaud your efforts to attack a very
serious societal problem in this country. While we all agree that one case of sexual
abuse is one too many, child sexual abuse in institutions and organizations probably
amounts to less than 20% of the total child sexual abuse in our society, and sexual
abuse is only 14% of all reported child abuse incidents.
Volunteers in youth programs are already stretched in terms of time and cost of
participation. Many mothers and fathers will simply be unable to pay the additional
cost involved in obtaining fingerprints or background checks. Some might expect
that the organizations should pay, but local PTA's or churches don't have the kind
of funds to pay for the 20 volunteer leaders who would be involved with a Cub Scout
pack. It is also undoubtedly true that some worthy volunteers would simply not
wish to subject themselves to being fingerprinted. More volunteers will be lost in
this fashion. The cost in the loss of volunteers will be significant with most esti-
mates running from 20% to 30%. Loss of volunteers will translate directly into a
loss of programs for youth.
Some have thought that making the fingerprint background check optional lor the
organization will make it easier on volunteer organizations. I would point out that
this legislation, if passed by the states, would establish a legal "standard of care."
This "standard of care" would have to be followed by organizations who could other-
wise suffer massive civil justice damages in the event of an abusive incident. Unfor-
tunately, experts have indicated that criminal background checks would identify in
advance nothing more than a small minority of those who are predisposed to molest
a child. i.i.ii.. ■..
I have addressed my concerns briefly with you today on this legislation with re-
spect to volunteers. This is because BSA is primarily a volunteer movement and be-
cause there are some important distinctions between employees and volunteers. We
believe that the focus of this legislation should be employees who have an economic
interest in their position. In the event that this legislation goes forward, including
volunteers as it does now, I would ask that it include language that volunteers and
57
their organizations be exempted from paying for either the fingerprint process or the
criminal background check.
I thank you for inviting me here today, and I hope that my comments have been
helpful to your deliberations.
BOY SCOUTS OF AMERICA
External Communications
132S West Walnut Hill Lane
P.O. Box 1 52079. Irving. Texas 7501 5-2079
Telephone 214-580-2000
FACT SHEET
PURPOSE
CHARTERED
ORGANIZATIONS
PROGRAM
VOLUNTEER
LEADERS
NATIONAL
ACTIVITIES
BSA AT A GLANCE
The purpose of the Boy Scouts ol America, incorporated on February 8. 1910. and chartered by
Congress in 1916. is to provide an educational program for boys and young adults to build char-
acter, to train in the responsibilities of participating citizenship, and to develop personal fitness.
Community groups receive national charters to use the Scouting program as a part of their
own youth work. These groups, which have goals compatible with those of the BSA. include
religious, educational, civic, fraternal, business, and labor organizations, governmental bod-
ies, corporations, professional associations, and citizens' groups
Tiger Cub*. BSA. A one-year program for first-grade (or 7-year-old) boys and their adult
partners that stresses equal participation. The boy and adult meet weekly for family activities
and monthly for an activity with other Tiger Cubs and adults in their group.
Cub Scouting. A family- and home-centered program for boys who are in second through
fifth grades (or 8. 9. and 10 years old). When they enter the fourth grade, they can become
Webelos Scouts and prepare to become Boy Scouts.
Boy Scouting. A program for boys 1 1 through 1 7 designed to achieve the aims of Scouting
through a vigorous outdoor program and peer group leadership with the counsel of an adult
Scoutmaster. (Boys also may become Boy Scouts if they have earned the Arrow of Light
Award or have completed the fifth grade.)
Varsity Scouting. An active, exciting program for young men 14 through 17 built around five
program fields of emphasis: advancement, high adventure, personal development, service,
and special programs and events.
Exploring. A contemporary program tor young men and women ages 14 through 20 that pro-
vides opportunities to participate in career, hobby, or sports programs in association with
business and community organizations. Special-interest posts cover more than 180 careers.
40 hobbies, and 35 sports.
Volunteer adult leaders serve at all levels of Scouting in approximately 380 local councils. 32
areas, and 4 regions, and nationally with volunteer executive boards and committees provid-
ing guidance.
Each autonomous local council is chartered by the BSA. which provides program and training
aids along the guidelines established by the national Executive Board and the national char-
ter from Congress
Cub Scouting continues to strengthen the tie of the family in Scouting and to encourage
physical fitness through the Cub Scout sports emphasis, and more than 2.200 Cub Scout
day camps
Boy Scouts and Varsity Scouts have many special activities available to them, such as
camporees. summer camps. Scouting shows. a"d national lamborees The Order of the
Arrow, the national brotherhood of honor campers, recognizes those Scout campers who best
exemplify the Scout Oath and Law in their daily lives, and it has local lodge section, and
national meetings. Those who have become Eagle Scouts, the highest advancement award
in Scouting, may join the National Eagle Scout Association. All camps are inspected and
accredited annually by teams of trained volunteers to ensure the health, safety, and quality of
program for campers
Exploring holds a biennial national conference for youth and adult members that offers work-
shops and activities on careers leadership, sports, outdoor adventure, and personal skills.
58
LEARNING
FOR LIFE
NATIONAL
GOOD TURNS
PUBLICATIONS
FINANCIAL
SUPPORT
MEMBERSHIP
AND UNITS
The biennial national law enforcement Exploring conference provides competition, training,
demonstrations, program exchanges, and career information in this field. An annual mock-trial
competition provides a national challenge for Explorers interested in the legal field.
Scouting Anniversary Celebrations, during February, include observance of the BSA's
February 8 birthday, Scout Sabbath, and Scout Sunday. Unit activities feature blue and gold
banquets, courts of honor, and open-house meetings.
Cub Scouts, Boy Scouts, Varsity Scouts, and Explorers participate in Scouting Environment Day
in April and Scouting Energy Day in October. Explorers and older Boy Scouts have a wide van-
ety of exciting outdoor experiences available at the three national high-adventure areas located
in Minnesota (with satellites in northern Wisconsin, Manitoba, and Ontano), Florida, and New
Mexico. Volunteer leaders may attend the Philmont Training Center in New Mexico each sum-
mer for a weeklong training conference.
Learning for Life is a wholly owned subsidiary of the Boy Scouts of America. The mission of
Learning for Life is to serve others by helping to instill values of good character, participating
citizenship, and personal fitness in young people, and in other ways prepare them to make
ethical choices throughout their lives so that they can achieve full potential.
Learning for Life can help schools prepare students to handle today's complex society. It's
designed to build confidence, motivation, and self-esteem. It can help students leam positive
personal values and make ethical decisions. Character development is a lifelong process, with
roots firmly planted in childhood. Learning for Life has curricula designed to fulfill its mission.
The Good Turn remains an important part of Scouting. It can be a simple daily act of
assistance from an individual youngster, or a coordinated national effort.
The Boy Scouts of America publishes three magazines for its members: Soys' Life, for all boys,
once a month, Exploring, a magazine for young men and women and their Exploring leaders,
four times a year, and Scouting, for all registered adults in Cub Scouting, Boy Scouting, and
Exploring, six times a year.
In addition, handbooks for all phases of the Scouting program are published, as well as more
than one hundred merit badge pamphlets for Boy Scouts, leader books, training pamphlets,
several program helps booklets for unit leaders, and other literature for use by youth members.
adult leaders, and parents.
The national council is supported largely through the annual fees paid by all members and
service fees paid by local councils, an Annual Giving Campaign among national employees and
selected volunteers, income from the sale of Scouting equipment, bequests, and special gifts.
Local councils are supported by communities through the United Way. the annual Sustaining
Membership Enrollment (SME), Friends of Scouting, special events, investment income,
bequests, endowment gifts, and special contributions.
On the unit level, chartered organizations that use the Scouting program provide meeting
places and often furnish program materials and other facilities. Youth members help to pay their
own way by paying dues to their pack, troop, team, or post treasuries and through approved
money-earning protects.
Membership since 1910 totals more than 85 million. As of December 31, 1992. membership
was 5.339.81 3.
Youth Members
Tiger Cubs 367.549
Cub Scouts 952.797
Webelos Scouts 790.190
Lone Cub Scouts 97
Boy Scouts 914.052
Varsity Scouts 61 .285
Lone Boy Scouts 252
Explorers 367.093
Learning lor Life
Elementary 120.640
Middle/junior high 64.410
High school 471,658
Special needs 40,305
Adult Members
Cub Scout leaders 576,225
Lone Cub Scout leaders 56
Boy Scout leaders 422,063
Varsity Scout leaders 20. 1 08
Lone Boy Scout lead - -s 121
Explorer leaders 84.252
Council Scouters 69.633
Learning for Life leaders
Elementary 3,114
Middle/|unior high 1.602
High school 7.832
Special needs 4,479
1.189.485
Units
Cub Scout packs
Boy Scout troops
Varsity Scout teams
Explorer posts
Learning tor Life
Elementary
Middle/junior high
High school
Special needs
51.996
44.515
6.211
20.323
883
526
2.213
1.562
128 229
4 150.328
1993 Printing
59
BOY SCOUTS OF AMERICA
External Communications
1325 West Walnut Hill Lane
RO. Bo» 152079. Irving. Texas 75015-2079
Telephone 214-580-2000
FACT SHEET
COMMUNITY ORGANIZATIONS AND
THE BOY SCOUTS OF AMERICA
HOW
COMMUNITY
ORGANIZATIONS
USE THE
SCOUTING
PROGRAM
PURPOSE That the purpose of this corporation shall be to promote, through organization and cooper-
ation with other agencies, the ability of boys to do things for themselves and others, to
train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred
virtues, using the methods which are now in common use by Boy Scouts.
Sec. 3. federal charter. Boy Scouts of America
June 15, 1916, by the United States Congress
CHARTERS Two kinds of charters are issued by the Boy Scouts of America: one to community organi-
zations, and the other to local BSA councils. The first enables community groups to
use the Scouting program under their own leadership as a service to their children, youth,
and families. The other empowers local councils to help chartered organizations effec-
tively use the Scouting program and to expand the use of the program to other commu-
nity groups.
Schools, community and religious organizations, and groups, with the help of the BSA,
organize Cub Scout packs. Boy Scout troops, varsity Scout teams. Explorer posts, and
Career Awareness posts for children and youth. They manage these units and control
the program of activities to support the goals and objectives of the chartered organiza-
tions. When establishing a new unit these two important actions must be taken to ensure
a quality Scouting program:
1. Selecting leadership. The head of the chartered organization appoints a chartered
organization representative to provide leadership in the selection of a committee of
adults that will provide overall supervision for the unit's program. The committee
selects the adult unit leaders who work with the youth. The chartered organization
representative is also a voting member of the local council and may serve as a mem-
ber of the district committee.
2. Providing a meeting place and promoting a good program. The chartered organi-
zation arranges for adequate meeting facilities for the unit and promotes through
its committee the full use of the program, including outdoor experiences, advance-
ment, recognitions, and, in particular. Scouting's values.
HOW THE BSA To support more than 124,628 Scouting units owned and operated by chartered organi-
SUPPORTS THE zations, more than 395 BSA councils provide professional counseling and administra-
COMMUNITY tion. commissioner service, training for leaders, camping and outdoor facilities, program
ORGANIZATION material and literature, planning tools, and other program aids. Councils also maintain
records on units and their membership, provide rank certificates and merit badge cards,
and maintain service centers where badges, insignia, literature, and other helps may
be obtained.
In addition, annual charter review conferences are conducted by council representa-
tives with chartered organization personnel to evaluate how effectively the Scouting pro-
gram is being delivered and how it may be improved.
60
A Sampling of Chartered Organizations Serving Children, Youth,
and Families with the Program of the Boy Scouts of America
BUSINESS AND INDUSTRY
Aluminum Company of America
AT&T
Amencan Airlines. Inc.
Amoco Corporation
Burlington Northern, Inc.
Corning Glass Works
Dow Chemical Co.
Eastman Kodak Co.
Ford Motor Co
General Electric Co.
General Motors Corp.
Goodyear Tire and Rubber Company
Hewlett-Packard Co.
Honeywell. Inc.
International Business Machines Corp.
J. C. Penney Company. Inc.
McDonnell-Douglas Corp.
PPG Industries, Inc.
Rockwell International Corp.
Tandy Corp.
Uptohn Co.
USX Corporation
Westmgnouse Electric Corp.
COMMUNITY
Air Force Association
Alpha Phi Alpha
American Bar Association
Amencan Legion. The
Amencan Red Cross
AMVETS (Amencan Veterans ot WWII. Korea,
and Vietnam)
Boys Clubs of America
Civil Air Patrol
Civitan International
Community Centers
Conservation Clubs
OAV (Disabled Amencan Veterans)
Eagles. Fraternal Order of (F.O.E.)
Economic Opportunity Commisawn
Elks. Benevolent and Protective Order of
(aRO-E.)
Exchange International
Farm Bureau Federation. American
Fire Chiefs. International Association of
PARC)
Fire Departments
4-H
Future Farmers of America (FF.A.)
Grange. National
Hospitals. Medical & Professional
Engineering Societies
Housing Protects
Indian Affairs. American Association on
Indian Tnbal Councils
Izaak Walton League of America
Jaycees. United States
Job Corp Centers
Kiwanis International
Knights of Pythias
Lions International
Masonic Order
Eastern Star. Order of
Military Reserves
Moose, Loyal Order of
National Guard. Army and Air
Neighborhood Associations
Odd Fellows Independent Order of
Optimist International
Parents Withoul Partners
Police Departments
Power Squadrons
Rotary International
Roundtable International
Runtan National
Sertoma International
Sons of the Amencan Revolution
US Air Force
US. Army
US Coast Guard
US Coast Guard Auxiliary
U.S Mann* Corp*
US Navy
VFW (Veterans of Foreign Wan) and
Auxiliaries)
Western Electric
Women's Club*
YMCA (Young Men's Christian Association)
YMHA (Young Men's Hebrew Association)
YWCA (Young Women's Christian
Association)
EDUCATION
Independent Schools. National Association of
PTA (National Congress of Parents and
Teachers)
Private School*
Public School*
LABOR
AFL-CIO (Amencan Federation of Labor and
Congress of Industnal Organization)
Automobile. Aerospace & Agricultural
Implement Workers of America
International Union. United
Boilermakers. Iron Ship Builders.
Blacksmiths. Forgers and Helpers of
America. International Brotherhood of
Communications Workers of America
Electronic Electrical. Salaned. Machine
and Furniture Workers. International
Union of
Electrical Workers. International
Brotherhood of
Engineers. International Union of Operating
Rre Fighters. International Association of
Food and Commercial Workers
International Union, United
Glass. Pottery. Plastic* and Allied Workers
International Union
Industnal Workers of America. International
Union. Allied
iron Workers. International Association of
Bndge. Structural and Ornamental
Letter Carriers, National Association of
Machinists and Aerospace Workers,
International Association of
McJders and Allied Workers Union,
International
Oil. Chemical and Atomic Workers
International Union
Paperworkers International Union. United
Plumbing and Pipe Fitting Industry of the
United States and Canada. United
Association of journeymen and
Apprentices of the
Postal Workers Union. Amencan
Rubber. Cork. Linoleum and Plastic
Workers of America. United
Steefworkers of Amenca. United
Teachers. Amencan Federation of
United Industnal Workers of North
America. Seafarers International Union of
North Amenca
Education Association. National
Teamsters Chauffeurs. Warehousemen, and
Helpers of Amenca. imemational
Brotherhood of
REUGIOUS
African Methodist Episcopal Church
African Methodist Episcopal Zion Church
Armenian Church of North Amenca
Assembly of God Church
Baha'i Faith
Baptist Churches
Amencan Baptist Association
Amencan Baptist Churches in USA
General Association of Regular Baptists
Primitive Baptist
Baptist Conventions
National Baptist Convention of Amenca
National Baptist Convention USA. inc.
Progressive National Baptist
Convention. Inc.
Southern Baptist Convention
B'nai B'rith
Brethren. Church of the
Buddhist Churches ot Amenca
Byzantine Rite Catholic Church
Catholic Church (Roman)
Catholic Organizations
Catholic Parent Organization. National
Forum of
Holy Name Society (Roman Catholic)
Knights of Columbus
Catholic Youth Organization
Catholic War Veterans
Serra International
Christian Church (Disciples of Christ)
Christian and Missionary Alliance Church
Church of Christ
Church of Jesus Chnst of Latter-day Saints
(Mormon)
Church of God
Congregational Church
Episcopal Church. The
Evangelical Churches
Federation of Islamic Associations >n the US
and Canada
First Church ol Chnst. Scientist
Greek Orthodox
Jenovan j Witnesses
Jewish Synagogues and Centers
Jewish War Veterans
Lutheran Churches
Evangelical Lutheran Church in
Amenca. The
Lutheran Church. Missoun Synod. The
Mennomte Church
Methodist Church, The Unrted
Moravian Church m Amenca
Nazarene, Church ot the
Orthodox Churches
Pentecostal Churches
Presbyterian Church (USA)
Cumberland Presbyterian Church
Reformed Church in Amenca
Religious Society ot Fnends (Ouakers)
Reorganized Church of Jesus Chnst ol Latter
Day Saints
Salvation Army. The
Seventh Day Adventists
Unitanan Universalis! Association
1992 Printing
61
CHILD OWE
& NGGLGCT
a
TUC
JOURNAL
Official Publication of the International Society
for Prevention of Child Abuse and Neglect*
"The Youth Protection Program
of the Boy Scouts of America"
Lawrence F. Potts
Boy Scoffs of America, Irving, Texas
Reprinted from Volume 1 6, Number 3, 1 992
Used witfi Permission
No 46-005
1992 Printing
nr\ /- r\r\ r\ r\ .
62
INTRODUCTION
OVER THE COllRSK of its Kd-year history, (he Ikiv
Scouts of America has become a part of the fabric of
American society. The Scouting program extends
into almost even city and town in the nation.
involving millions of young people and adult volun-
teers each year. In fact, nearly JO percent of the
American youth population comes into contact with
Scouting every year.
The nearly universal presence and availability of
Scouting presents lx>th problems and opportunities
for the organization. Much like the public schools.
Scouting must confront and deal with many of the
social problems that plague our contemporary cul-
ture. At the same time, however, the boy Scouts of
America (USA), as a well-organized, disciplined, and
highly structured youth-sen inn organization, is in a
strong position to have a positive impact on the
pressing social problems of the day.
The USA has a long tradition of addressing social
problems within the context of building character,
citizenship, and fitness among young people.
Through Scouting, young lioys can learn coping
skills that will help them navigate through some of
the hazards of contemporary American life
In the early and mid-1980s, the national leader-
ship of the BSA identified five compelling societal
problems that posed challenges anil opportunities
for the USA to have a positive impact. Referred to by
the BSA as the Five I'nacceptables." the problems
are: drug abuse, hunger, illiteracy, youth unemploy-
ment, and child abuse, including child sexual abuse.
BOY SCOUTS OF AMERICA—
THE ORGANIZATION
The USA is made up of nearly t(X) local councils
accredited by the national USA. Each local council is
incorporated as a nonprofit organization and has its
own staff and hoard of directors. The local councils
are responsible for chartering sponsors, such as
schools, churches, synagogues, and service organi-
zations, which essentially own and o|X-rate the
Scouting program lor th—'r own youth.
The national BSA develops the programs, estab-
lishes policies and procedures, provides leadership
training for Scouting professionals and designs lead-
ership programs tor volunteer leaders. The national
BSA also operates special high-adventure areas,
such as I'hilmont Scout Ranch in the mountains of
New Mexico and the Flonda National High-Adventure
Sea Base Additionally, the national organization
provides marketing support and produces and
distributes a vast array of educational materials and
Scouting supplies.
BSA Confronts Child Sexual Abuse
In the early and mid- 1980s, child sexual abuse
burst into the public consciousness by way of
national media coverage of dramatic allegations in
communities in Southern California and Minnesota.
These incidents and the subsequent media coverage
did much to heighten the public s awareness of child
sexual abuse as a widespread societal problem
Recognizing that BSA memlx'rs. like the rest of
society, could lx' affected by this widespread
problem, the national leaders of the Boy Scouts of
America committed the BSA to taking a leadership
role in developing strategies to deter, if not prevent,
all forms of child abuse, including sexual abuse.
BSA officials reviewed the literature on child sexual
abuse and consulted with nationally recognized
experts for advice and guidance.
To address child sexual abuse in its Youth
Protection Program, the BSA drew upon Dr. David
Finkelhor's four preconditions for child sexual abuse
as the issues to be dealt with in the program. Those
four preconditions are: 1 1 An offender with the moti-
vation to sexually abuse: 1) the molester must over-
come internal inhibitions against abusing; 3' the
molester must overcome external harriers to abus-
ing; and -t) the molester must overcome resistance
bv the child.
Education at Many Levels
Because of the BSA s multilayered organizational
structure, education aimed at the detection and pre-
vention of child abuse had to lx* undertaken at
many different levels, beginning with the "500
people employed full-time in Scouting across the
country. Through this initial educational program.
BSA employees were trained to recognize the differ-
ent tonus of child abuse, including child sexual
abuse, and the methods cmploved bv molesters.
Each BSA employee also was made aware of the
BSA's policies and procedures for handling reports
or allegations of child abuse. The policies and pro-
cedures are spelled out in an official BSA publica-
tion for professional staff and key volunteers.
Perhaps most importantly, the training program sent
a message to even- BSA employee that child abuse
was an issue that the BSA would deal with openly
and aggressively.
Training the BSA staff and support personnel was
important, but developing a program to train the
63
more than I million adults who serve as Scouting
volunteers each year was an even greater challenge.
An initial pamphlet entitled Child Abuse. Lei s Talk
About II was published and distributed beginning in
1986. It contained a strong statement by the BSA
officially expressing the organization's concern
about child abuse generally and child sexual abuse,
specifically. The BSA also produced and distributed
a training program for adult volunteers that included
a 90-niinute videotape and printed learning guide.
The training program was designed in such a way
that it could lie used by any youth-serving agency.
given the widespread nature of the problem. This
training packet was revised in 1990. The revised
video interweaved dramatizations of typical child
sexual abuse situations with comments by members
of the BSA's Youth Protection Advisory Panel, and
the content was broadened to lie relevant to parents,
as. well as volunteer leaders. More than 13 million
adult volunteers went through the training in 1990.
Any adult who attends the USA s special programs
must go through the Youth Protection tnuning pro-
gram, and a special training program was developed
for adults and youths who attend the National Camp
School. In addition, the revised Bay Seoul handbook
as well as the handbooks for the three Cub Scout
levels, include a pull-out. 2-i-page booklet. How to
protect vottr children from child abuse and drug
abuse A parent's guide. The guide helps families
develop their self-protection skills.
The Scout Handbook is one of the most widely
distributed Nx)ks in the world The pull-out guide
also in included in the official USA Scoutmaster
bandlxxik as is a chapter on the BSA s Youth
Protection Program All told, more than 3-5 million
copies of the Parent's Guide have been distributed
by the BSA in just the first IS months of publication,
making it perhaps the most widely distributed single
piece of youth protection literature.
After reviewing the materials available outside the
BSA. the organization took an even bolder step with
an educational video aimed at liovs ages 10 to 1-t.
Called A lime to tell, the 29-minute educational video
explores the problem of sexual molestation through
the dramatization of several recognized risk factors:
the presence of a stepfather: friends of the family:
older youths who molest younger ones. The video,
which is intended to be shown at any gathering of
appropriate age youth, introduces what may Ix- a
unique educational concept — The three Rs~ ot
youth protection:
* Resist attempts of child molesters. Resistance will
stop most molestations, since very few molesters
will resort to force.
■ft Report individuals who attempt to molest you to
your parents or other trusted adult.
A "presenter s orientation" that runs just under 5
minutes precedes the presentation of A time to tell
More than 3.500 copies of the video were distrib-
uted in the first year, and the BSA has encouraged
duplication and even wider distribution of the edu-
cational video, both within and outside ot Scouting
It also has lx*en distributed by satellite to public and
educational television stations across the country,
which in many instances have aired it over their local
and regional systems. Another educational video
aimed at Cub Scouts (6- to 9-year-olds) was distrib-
uted in the fall of 1991. A future protect will address
adolescents, and that program will be coeducational.
INTERNAL SAFEGUARDS
While the BSA recognizes that there is no proven
method for screening out potential child molesters,
the organization has taken steps to create a hostile
environment for them. These internal barners begin
with the volunteer leader selection pr<xess The BSA
throughout its long history has maintained that
Scouting is essentially a local activity and that the
sponsoring organizations and parents ot Scouts are
in the best position to know and select their volun-
teer adult leaders. The volunteer leaders ot the
packs, troops, and posts (the scouting units i are
selected by the I'nit Committee, with the concur-
rence of the chartered organization.
A standard two-part application form specifically
asks whether the applicant has been arrested for
child abuse or other crimes. The fonn also asks tor
previous home addresses and references. A personal
interview is required, and the application must Ix-
approved by the head of the chartered organization.
The BSA national office, as it has for more than 50
years, also maintains a file on indiv iduals who tor
various reasons are ineligible to Ix.' accepted into
Scouting. All registrations are checked annuallv
against the file. Although applicants conceivably
might lie in answering the questions, the application
form puts them on notice that the organization is
aggressively hostile toward molesters.
# Recognize strategies anil situations used by child
molesters that can lead to attempted molestation.
64
Policies That Create Barriers
In addition to the educational components, the
USA has established policies that are intended
to protect youth from child abuse. Examples of
these policies are:
* Two-deep leadership. Two registered adult leaders
or one registered adult leader and a parent of a
participant, one of whom must lie 21 years of age
or older, are required on all trips and outings.
The chartered organization is responsible for
ensuring that sufficient leadership is provided for
all activities.
* Unaccompanied activities between an adult
leader and a youth member are prohibited. In sit-
uations that require personal conferences, such as
a Scoutmaster's conference, the meeting must be
conducted in view of other adults and youths.
* Respect for privacy. Leaders are expected to
respect the privacy of Scouts during activities
that require changing clothes and dressing.
Leaders also should protect their own privacy
in similar situations.
* Separate accommodations. When camping, no
youth is permitted to sleep in the tent of an adult
other than his own parent or guardian.
if Proper preparation for high-adventure activities.
Activities with elements of risk should never lie
undertaken without proper preparation, equip-
ment, supervision, and safety measures.
* Appropriate attire is required for all activities.
"Skinnv dipping." for example, is not appropriate
as part of the scouting program
* Secret organizations are prohibited All aspects of
the boy Scout program are open to observation
by parents and leaders.
» Constructive discipline. Discipline used in Scout-
ing should lx- constructive and reflect Scouting's
values. Corporal punishment is never permitted.
* Hazing is prohibited Physical hazing and initia-
tions are prohibited and may not lx- included as
part of any Scouting activity.
* Junior leader training and supervision. Adult lead-
ership must monitor and guide (he leadership
techniques used by junior leaders and see that
USA policies are followed.
Prompt Reporting and Action
Despite the lx*st efforts of adult leaders and parents,
potential molesters still may succeed in getting
through the net and incidents of child sexual abuse
still may <xcur. because that possibility exists,
youths are instructed specifically and unequivmally
to report any incident immediately to an adult
leader or other adult he feels he can trust.
Any adult leader who receives a report of child
abuse is required to notify the local Scout execu-
tive immediately, and the executive is required to
report the information to the local child protective
services office and immediately remove the alleged
molester from all Scouling-related activities until
the case is resolved.
Delivery System Is Key
Perhaps the most important aspect of the BSA
Youth Protection Program is the organization s highlv
developed and effective delivery system. Once a
program or policy is adopted by the national head-
quarters, the people and systems are already in
place to communicate and implement them at even
level of Scouting. This well-developed delivery sys-
tem enables the BSA to serve -t.l million youths and
1.3 million adult volunteers in more than 130.000
Scouting units across the country. Continuing
reports from the field indicate that the Youth
Protection Program has Ix-en implemented aggres-
sively and enthusiastically by the 39" local councils
and their chartered organizations, or sponsors.
RESULTS
The USA has no accurate statistics on the inci-
dence of child sexual abuse in Scouting, but all the
available indicators suggest that the problem is far
less than in the population at large. At this point,
there is only anecdotal evidence concerning the
effectiveness of the BSA Youth Protection Program,
but parents, volunteers, and youth strongly support
it. As the BSA had hoped, the impact to some-
degree has spread even beyond Scouting. In some
cities, for example, local councils are actively work-
ing with other youth-serving organizations to help
them develop similar programs. In some cases,
youths have felt encouraged to come forward and
report molesters. In one Midwest city, for example,
several youths turned in a molester after they
watched the video. .1 time to tell. As a result, the
local district attorney is now using the video with all
victims of child sexual abuse seen there.
65
CONCLUSION
In attacking the problem of child abuse, the BSA
has implemented a multi-part strategy' that encom-
passes the following key elements:
1. Educating Scout volunteers, parents, and Scouts
themselves to aid in the recognition, reporting
and deterrence of child abuse.
2. Establishing leader selection procedures to prevent
offenders from entering the BSA leadership ranks.
3. Establishing policies that create barriers for child
abuse within the program.
4. Encouraging Scouts to report improper behavior
in order to identify offenders quickly.
5. Swift removal and reporting of alleged offenders.
The BSA also established a Youth Protection
Advisory Panel, made up of five leading experts in
the field of child abuse, to assist the organization in
keeping the Youth Protection Program up to date.
The BSA Youth Protection Program demonstrates
that with committed leadership, a well-designed,
multi-faceted strategy, an effective delivery system,
and a tradition of discipline within the organization,
today's youth service agencies have an important
role in assisting their members in not becoming
victims of sexual abuse.
NOTE. Repnnl requests to Lawrence F Potts. Administrative Group Director,
Boy Scouts ol America. 1 325 Walnut Hill lone, Irving. TX 75038 3096
66
Mr. Edwards. The last member of the panel to testify is Col.
Thomas H. Handley, who is legal counsel, and with him is Renova
Williams, director of personnel, Civil Air Patrol from Montgomery,
AL.
You may proceed.
STATEMENT OF COL. THOMAS A. HANDLEY, LEGAL COUNSEL,
CIVIL AIR PATROL
Colonel Handley. Thank you, Mr. Chairman, and members of
the subcommittee. We appreciate the opportunity to appear and
testify. I will try to be very brief in my remarks.
Many of the views that we have on this legislation have been an-
nounced by Mr. Potts. The Civil Air Patrol is chartered by the Con-
gress under title 36 as a Federal corporation. It also serves as the
proud auxiliary of the U.S. Air Force.
In its operations, it performs over 85 percent of all the inland
search and rescue. It is now heavily engaged in counternarcotics
activities, in passive surveillance and reporting; disaster relief,
playing an active role in many of the disasters, including the floods
that now plague the central part of this country.
The third mission that we perform under the charter of the Con-
fress is that of an active cadet program. We have over 20,000 ca-
ets under the supervision of about 30,000 senior members. We call
our adult volunteers "senior members". We are an all-volunteer
program. We are funded under title 10 under the Armed Services
Committee to a certain extent for logistics support.
Civil Air Patrol has been involved in the child abuse issue for
many years. In 1988, we began a program with the cooperation of
the FBI to conduct a nationwide fingerprint screening program. We
have been engaged in that program since then. And at the present
time, all of our senior members are required to have a fingerprint
submitted to the FBI.
We have established a procedure within our organization to re-
view the records, which includes both arrests and convictions. And
we exercise a quality control review of those records and it has
been a very valuable program.
We greatly support the legislation. We would like to add that
there are certain things that we would suggest it include, such as
a provision to include arrest records along with convictions.
It has been our experience that in certain individuals you will
find a pattern of arrests for such things as indecent exposure or as-
sorted type of sexual things with no disposition; and that indicates
a pattern of sexual problems. I think if the legislation stops at only
convictions, I think you will deprive the evaluators of a very valu-
able tool in screening out people who are what we call the
pedophiles.
And we have found in our review of this subject, that there are
some very, very dedicated pedophiles out there that infiltrate youth
organizations, volunteers primarily, such as the NAMBLA, the
Man-Boy Love Association, which operates under specific charter
and they attempt to devise ways to infiltrate one organization after
another to have sex with young boys.
These organizations require a careful screening that I think this
bill will help provide.
67
The other thing that we think the committee ought to consider
is somehow permitting youth organizations, particularly the volun-
teers, to exchange membership lists or lists of members who we
have disqualified for sexual misconduct. Since these pedophiles are
known to go from organization to organization, if we as the Civil
Air Patrol have had a case where, although not prosecuted as a
criminal offense, that we have shown that they are inclined to mo-
lest a child, we keep a record of that. It would be very helpful if
we would have the freedom to exchange that information with the
other volunteer organizations. We think such a provision would be
very helpful in the screening of pedophiles and the prevention of
child abuse.
I totally support or we totally support Mr. Potts' view that the
bill will establish a new standard of care in this industry. I have
had the responsibility for monitoring litigation of the few cases we
have had. And they are devastating, because the parents of chil-
dren who are abused now, in addition to prosecuting the individ-
uals, have turned to civil remedies against the youth organizations;
and under the plaintiffs bar, they have proceeded to have a whole
series of theories of liability under which claims are made for neg-
ligent employment and negligent retention.
These cases are tremendously emotional and they have resulted
in multimillion-dollar judgments, settlements and so on. I think the
committee ought to know that the insurance industry at this time
is rapidly withdrawing from this market.
We are losing our insurance in December of this year for what
they call SAME, sex and molestation exposure. The GL, or general
liability, market has now determined that this is an unpredictable,
unrateable type of risk that they simply don't want to cover. I
think the end result is, if you cannot insure this risk, it will do
many things to organizations such as put them out of business.
And I think it would be well if this committee might look and
see what the options are for organizations that want to continue in
business when the insurance is simply not there.
Our volunteers are not covered when they — if the insurance is
simply not in place. So having said that, we support the legislation
and would be glad to respond to questions.
I think the committee may want to hear from Ms. Williams, who
can respond and describe how we process the fingerprint cards and
what the problems are on the turnaround time and so on.
So at this time with the chairman's consent, I would like to have
Ms. Williams address that.
[The prepared statement of Colonel Handley follows:]
Prepared Statement of Col. Thomas A. Handley, Legal Counsel, Civil Air
Patrol
Mr. Chairman and members of the committee:
Thank you for the opportunity to appear before this Subcommittee to express Civil
Air Patrol's views on the proposed legislation.
Congresswoman Schroeder and cosponsors of this legislation are to be commended
for their recognition of a serious societal problem and for their leadership on behalf
of this nation s most precious commodity, its children and youth. Volunteer organi-
zations such as CAP have long been concerned with protecting our youth from a va-
riety of harm. This legislation will address, at least in part, a major concern of child
abuse. We are greatly encouraged that this problem is now receiving attention at
the highest levels.
68
Civil Air Patrol is a nonprofit corporation chartered by Congress. It is also des-
ignated as an auxiliary of the United States Air Force. Congress has given CAP
three nationwide missions in its corporate charter. They are (a) emergency services
for communities, (b) aerospace education, and (c) operating a cadet program. Civil
Air Patrol flies over 85% of all air search and rescue missions in this country each
year in its Air Force auxiliary role. It now flies more hours on counter narcotics mis-
sions than search and rescue. In addition, it assists states and local communities
in natural disasters, such as the recent flooding in the central states. Our cadet
(youth) program has a structure which exposes young people to discipline and train-
ing that helps prepare them for careers in the military or civilian community. A sig-
nificant number of each entry class at the Air Force Academy has prior CAP cadet
training. Civil Air Patrol's membership consists of some 20,000 cadets between the
ages of 13 and 18 and 34,000 adult volunteers.
Civil Air Patrol has had a long-standing concern with the problem of screening
its volunteer adult members who would interact with its youth, i.e., its cadets. The
most significant method known to date was the examination of an individual's crimi-
nal record. Civil Air Patrol first had an FBI fingerprint records screening program
during World War II which continued until the early 1960s. That screening was not
directly related to the youth program, but rather provided quality control over adult
members generally. Civil Air Patrol resumed its FBI fingerprint screening program
of adult members in late 1988 primarily as a result of concerns raised over its youth
program as well as its counter narcotics activities. The national media has made
everyone aware of the dangers involved in sex abuse of youth.
In addition, CAP has, since 1991, participated as a member of the National As-
sembly's Collaboration for Youth's Task Force on Child Sexual Abuse. One of the
Task Force's objectives has been to seek effective ways to screen volunteer members
working with children through collaboration with other national youth organiza-
tions. Other members include the Scouts, Salvation Army, Big Brothers and Big
Sisters, etc.
Although not a panacea, FBI records screening is a valuable tool. For CAP, it was
a national membership screening program that showed a clear policy of child protec-
tion against those who had criminal records.
Ironically, as the FBI screening program started, our long-time liability insurance
carrier advised that it was excluding CAPs coverage for child sexual abuse. That
carrier did not care whether CAP had an FBI screening program or not. It simply
wanted to be relieved of that risk despite not having any claims.
Civil Air Patrol implemented the FBI records screening for our senior member
volunteers in June 1988, fingerprinting all new applicants and targeting current
members working with cadets for initial fingerprinting, eventually expanding
screening to all members, regardless of their duty positions. We also imposed a dues
assessment of $10.00 per member for a legal defense fund to sustain possible losses
resulting from child sexual abuse litigation no longer covered by our liability insur-
ance ana to absorb the cost of additional corporate employees hired to process fin-
gerprint cards.
Since implementation, CAP has received over 61,000 fingerprint cards from our
CAP volunteers. Over 55,000 cards were forwarded to the FBI for screening. The
6,000 number difference is the number of cards we returned to the members for il-
legible prints, incomplete information, etc., which were not returned to us. We know
we lost 6,000 members who simply would not go to the trouble to get fingerprinted
a second time or return corrected cards. This does not include the thousands who
simply decided it was too much trouble and dropped out of the
program.
Of the 55,000 cards sent to the FBI, some 3,600 were "hits," that is, they had
records of some sort on file at the FBI. Offenses ranged from DUIs and youth mis-
demeanors by currently responsible citizens to rape and first degree murder. Out
of the 3,600 records, 122 were determined to be unfit for membership in Civil Air
Patrol — 70 of these were for sex offenses. We were obviously gratified to identify
this number of potential child abusers. The unknown, of course, is the number of
sex offenders not identified because they elected not to be members rather than risk
identification. Unfortunately, they may have gravitated to other youth organizations
which do not yet have access to criminal records.
On the downside, the FBI fingerprint screening program caused a significant loss
of membership in both adults and cadets: the cadets, because of the increased dues,
and the adults because of that and other reasons such as privacy. Both the member-
ship loss and the uninsured exposure caused CAPs Board to seriously consider dis-
banding the cadet program. But they made the decision to retain the cadet program
and attempted to seek means of improving membership screening techniques and
established relationships with other youth programs facing similar problems.
69
The Boy Scouts, in particular, were of tremendous assistance, to the extent of
sharing their very excellent video training tapes on child sexual abuse. These tapes
are now an integral part of CAPs training programs. Our collaboration with the Na-
tional Assembly^ Task Force has also been invaluable in identifying problems and
seeking remedies for our common problems. The Assembly has been a true leader
in identifying screening issues and methods.
At this point, we would like to make some specific comments on the proposed leg-
islation. Section 3 "Background Checks," when implemented, will for all practical
purposes establish what lawyers call a "standard of care" for the business of child
care. That standard will apply to volunteer organizations as well as for profit. The
problem is that the legislation will make FBI checks available, but it will not pro-
vide funding for the organizations to pay for those checks. The first year of FBI
services for CAP was free. Then, Congress required the FBI to charge users. The
$17.00 charge per record was ultimately funded from Congress because of CAPs
other federal activities, such as counter-narcotics missions. It now costs $160,000
per year and that only covers new members. Other youth organizations or child care
providers will have to pay $23.00 per record according to current fee schedules.
Some experts say all members should be rescreened every five years, but CAP has
yet to adopt that requirement. Other volunteer organizations may well be unable
to pay for obtaining these records. Yet, if they do not avail themselves of the infor-
mation and a convicted sex offender molests one of the children, it will simply put
them out of business. In a phrase, the legislation is establishing a standard tnat
organizations cannot afford to ignore and may not be able to afford financially.
Also, CAP urges that the records on offenders be expanded to include arrests. Our
experience with FBI records has been that some sex offenders have arrests that
have no disposition simply because the family didn't want to press the case. If
records are to be available, make it complete with arrests. Judgment by those re-
viewing them will be the key to using them correctly.
We also urge the Committee to consider including a provision for youth organiza-
tions to freely exchange lists of adults excluded from membership because of sexual
misconduct, particularly with young people. Experts will tell you that pedophiles
will go from one youth organization to another. Legal considerations have to date
made this impractical. If the Scouts have identified a pedophile, it makes no sense
not to have a free exchange of this information to keep them out of other
organizations.
The insurance consequences of this legislation and of the whole area of sex of-
fenses with children should be examined very closely by the Committee. The cov-
erage term is "SAME" which stands for Sex and Molestation Exposure. The plain-
tiffs' bar has used the legal theories of "negligent employment" and "negligent reten-
tion" to make large claims against youth organizations which have experienced a
molestation case involving a volunteer or adult employee with a child in their care.
The emotions of these cases have resulted in multi-million dollar awards for chil-
dren and their parents — not against the molester, but rather against the organiza-
tion that somehow should have known about him or her. Not only criminal records
are used to prove that knowledge. These large awards have convinced many large
insurers that this risk should be excluded from General Liability coverage. Cov-
erage, if it exists today, rests in the "specialty market" with high self retentions,
i.e., deductibles. The legislation establishing the new standard of care and the insur-
ance market's withdrawal of coverage may drastically affect many organizations'
ability to continue to provide child care at all. Without insurance coverage, individ-
ual volunteers may not be available. It is clear that large organizations such as the
Scouts, Big Brothers/Big Sisters, and local church youth groups would be attempting
to serve.
Civil Air Patrol has been advised that it will lose its SAME coverage effective in
December 1993. Unless replaced by some company, we will again face the issue of
continuing the cadet program.
Another problem with screening in many organizations is timing. Civil Air Patrol
deals directly with the FBI and it customarily takes from 45 to 60 days to receive
responses to our fingerprint requests. While this works, after a fashion, for Civil Air
Patrol, it would not be practical for many youth organizations using volunteers for
short periods, such as Little League teams, YMCAs, and youth camping groups.
Again, we support this legislation and hope these comments provide some useful
suggestions for changes as it makes its way through the Congress.
Thank you again for the opportunity to provide this testimony.
Mr. Edwards. Yes, we would appreciate hearing from Ms.
Williams.
70
STATEMENT OF RENOVA WILLIAMS, DIRECTOR OF
PERSONNEL, CIVtt, AIR PATROL, MAXWELL AIR FORCE
RASE, MONTGOMERY, AL
Ms. Williams. Mr. Chairman, we do appreciate the opportunity
to be here. And I feel a particular appreciation for what you are
doing in that when we started wrestling with this problem of crimi-
nal records screening back in 1986, 1987, we felt lost. We were al-
most like a voice in the wilderness.
We didn't have anywhere to go. And it was through the collabo-
ration of some of the youth organizations that we found that they,
too, face similar problems. Ana, of course, we made what I consider
some very difficult decisions as an organization.
We predicted, and rightly so, that — we projected membership
losses, significant membership loss as a result of our implementing
the criminal records check. What this meant to our organization,
which is already a small organization, we went down from some
73,000 members to — we stand at 55,000 at this time. We never
quite recovered. There are other reasons. We experienced some
other things like recessions and other reasons for membership
losses, but in particular, we could correlate some of our losses of
volunteers with the implementation of this check.
Our organization said, we believe that we have to make a tough
decision, Dut we need to save our cadet program, our youth pro-
gram. With that in mind, that decision was made. We have paid
for that decision membershipwise, if you would.
Some of our volunteers are good people. They are people that
wanted to help the children and they wanted to volunteer and,
frankly, at the time they were offended at being asked to submit
to this. We took upon ourselves an extensive education campaign
to explain to our membership. And now they are beginning to see
the things that we were talking about in 1988, you are discussing
here today.
It took us a number of years and a number of very difficult deci-
sions, especially when we are probably faced with losing insurance
and not knowing if we can keep our cadet program. But we were
able to do that.
We tried to be a good customer to the FBI because we recognized
that they took us on and we are very fortunate to have access
through that, not just because of our youth-serving role, but be-
cause of some of our other Federal assistance roles. But in so doing,
it takes us typically 45 to 60 days — and we are a paying customer.
Those are with user fees — to have a turnaround. We have been to
the FBI headquarters and we have seen the workload and their
challenges and we know what they are going through. We try to
understand; to be a good customer to them.
But at the same time, from the time that a fingerprint card is
processed out in one of our communities, it is sent to our national
headquarters for review to make sure that it is legible and we can
give it to the FBI in a form that they require, and we take it from
our headquarters in Montgomery, AL, and return it to the FBI; it
could be a good 45 to 60 days.
This works for Civil Air Patrol after a fashion in that ours is a
long-term membership, but some of these organizations have a
short-term membership and perhaps it would not work for them at
71
all because by the time that is received or returned to them, their
need would have expired.
These are some of the things that I would like to leave with the
committee. We appreciate your work so much because we have
been doing this for some time now. We need to let you know that
well-intended, good volunteers simply dropped out of the program.
And keep in mind they didn't have to pay the user fee. That was
paid for them.
So if you could imagine the Scouts and some of the other organi-
zations if they had to pay the user fee, there could be a more sig-
nificant loss of membership. We appreciate Congressman Schroe-
der's efforts in this area and all of the committee's pioneering what
we consider to be a problem for a long, long time.
Mr. Edwards. We thank all members of the panel. They have
provided us with some valuable information and suggestions.
Mrs. Schroeder.
Mrs. Schroeder. I thank you, too. Mr. Swann, you are abso-
lutely right. This is a baby and we need to see how it grows.
And we know it is not the whole solution to this terrific problem.
But your discussion about the insurance risk, I think is a very seri-
ous one. We would certainly hate to see voluntary agencies shut
down.
Has anybody ever communicated with insurers?
Would this type of legislation or this type of work at the national
level be any way that they could start reinsuring people?
I mean is there anything that we could do to lessen the risk or
the exposure they are feeling?
Colonel Handley. Mrs. Schroeder, we have talked to a number
of insurers. We are in a position of offering a problem without a
resolution. But the general liability market simply didn't know how
to handle this risk.
It is not an automobile accident with so many statistics to it. It
is too emotional and the jury verdicts range in the multimillion-dol-
lar area. And many of the underwriters simply don't know how to
evaluate the risk. The general liability market is withdrawing.
The specialty market is to a certain extent remaining. But if a
youth organization has a verdict, you can almost count on a with-
drawal from the market from your coverage the following year un-
less you are willing to accept the first $10 million of coverage in-
side, which we are not, or some type of high deductible.
So I don't know the answer. But it is definitely with the bill es-
tablishing a level of care or a standard of care where youth organi-
zations had better check the records, or if they don't and an indi-
vidual has an offense on the record, why the punitive damages are
almost certain to follow if they are very difficult cases.
Mr. Swann. If I may, I would like to say that from our perspec-
tive at Big Brothers and Big Sisters we find that not to be the case.
Our insurance carrier reviewed our policies and standards through-
out the country and is satisfied with our procedures. And we have
received a rebate in terms of the cost of our insurance.
So I would offer that while the insurance companies will take a
very hard and long look at the organization and the liabilities, cer-
tainly, the policy, our standards and practices and how you operate
72
and proceed from a grassroots level all the way to a national office
has a great deal to do with that.
And as strong a measure as we could have from Congress in
terms of a bill to protect children, it is only going to be as strong
as the reporting mechanisms that we have at our individual agen-
cies. If our agencies have cases of child abuse or neglect within our
organization and do not report it, then it doesn't matter what kind
of records we keep or what system or how much money we have
in place to carry out this goal. If we don't report it, then no one
knows.
In our organization, the average age of our volunteer is 35 years
old. And we have a lot of people in the service who are involved.
That means they are doing a lot of traveling, whether for profes-
sional reasons, they decide to move, get married, change their life,
they cross State and county lines and they move on. And you have
to have a system of reporting that allows you to have that.
So it does begin with that local agency and if it is not a strong
policy at the local executive director, those volunteers do not report
any incidents to the State social services or to legal authority. If
it gets to that point or to our own national office, then it is a failed
program.
So we believe that what we need is a strong program that the
Government supports and stands behind. And we need to ensure
that each agency is doing more than their share to make sure that
the system is in place.
Mrs. Schroeder. You are absolutely right.
Mr. Edwards. Has your organization been sued?
Mr. Swann. Our organization has been sued. As I stated before,
one of every six volunteers that come comes through our door be-
comes a Big Brother or Big Sister. Some have settled and some
have gone through the entire process in the court and we have lost
some of those, but we still continue to get volunteers and we con-
tinuing to grow.
Colonel Handley. If I may respectfully disagree with Mr. Swann.
I think if the committee would look into the insurance market it-
self independently, just ask the general questions of the market-
place about the same risk, I think you will find what we are sug-
gesting is accurate; that — I mean, CAP is considered one of the
Forefront people in the fingerprint national screening program.
Very aggressive.
And we simply have a terrible time in convincing underwriters
that with the youth program we have, that the SAME risk should
be covered. Many of the carriers will give you a $25,000 token cov-
erage just so there is no discrimination issue involved in issuing
policies, but that is nothing in the way of coverage.
And then there is the other thing. Perhaps a certain level of pre-
mium you might be able to insure this risk, but out of CAP'S $1.4
million dues revenue, the insurance liability program takes almost
$800,000 of our revenue as it is and part of it is for our aircraft
fleet, but the other half is for the general liability. So we simply
can't afford the risk any worse than it is.
Mrs. Schroeder. That is very interesting. And the Boy Scouts
don't have this problem and don't think that the fingerprinting is
73
necessary? I mean, how have you been able to screen and avoid
this problem?
Mr. Potts. The Boy Scouts has always encouraged organizations,
like churches, to choose members in their community, members in
their congregation, members who they know. Most of these mem-
bers, and by far the majority of these members, have kids that are
in the program. They are mothers and fathers who are going
through the program with their youngsters.
We nave an application form that asks for references. We have
an application form that requests to know where you have lived
over a certain period of time and who you have worked for. But we
do not, under most circumstances, require that individual to get a
fingerprint check.
In fact, in most States, you can't just walk down to our station
and get one of those. So we use — we know the leaders that we are
selecting. They come out of the community they are serving in.
They fill out extensive background applications, and are chosen in
that matter.
With regards to insurance, we think the insurance market is
very spotty. There are companies which are pulling out.
I am not an expert and up on the minute on knowing what com-
panies are writing and what companies are not writing and I can't
give you very much information on that; I am sorry.
Mrs. Schroeder. Do you have a profile of what you think is a
trustworthy volunteer that has worked for you and has not caused
any problems? I mean, you can figure this out without any help?
Mr. Potts. Unfortunately, experts have told us that there is no
profile, there is no way in advance that you can be assured.
Mrs. Schroeder. That is what they have told us, too. I thought
maybe you have found the key to unlocking all of this.
Mr. Potts. We also rely on our training program as I talked to
you about. There are going to be some people — pedophiles may
nave children, may be married. People who we would like to get
into our leaders would come out of the community and would be
known in the community, would have roots in the community,
would be married and would be fathers of kids in the program.
Those are the people who primarily that we have.
But there are going to be some who do get into the program. And
the education program that we have really cooperated on, I mean
have really pushed in the last several years, goes directly to kids.
We try to seek empowerment to children so the children know
what's happening to them, so that the children can spot the
allurers. We try to teach parents how to protect their kids from
child abuse and we talk to volunteers; we have programs for
volunteers.
So, we try and protect, as I am sure all of these organizations
do, we try and protect the people who are in the program by
empowerment should a pedophile get into the program.
Mrs. Schroeder. Very interesting. Again, I thank the panel, and
consider the window open. Any ideas that you have for what we
can do to make this more usable or better or more accessible? And
I think your point about the local agency doesn't follow through, it
never works. So we have to find a way that we are working from
the top-down and the bottom-up and everywhere in between.
74
Thank you very, very much.
Mr. Edwards. I thank you all very much, also.
You have not only been splendid witnesses, but you have given
us some valuable suggestions. We are going to go over these sug-
gestions, I will with Mr. Hyde and counsel and the other members
of the subcommittee, and we will not necessarily accept all of them.
Some of them will be a matter of committee decision.
But the bill will be marked up and approved in the next few
weeks. We hope, as I said in my opening remarks, that it will be
a part of the crime bill that is being presently written. If it is not,
or if something happens to the crime bill and it doesn't make it,
we intend to take it to the House of Representatives as a freestand-
ing bill all by itself and encourage our colleagues in the Senate to
do the same.
And I know that the President of United States endorses the bill.
So we expect to move it along and have it in the Rose Garden cere-
mony. I hope that all of you come when the bill is signed in just
a very few months.
Thank you.
Mrs. Schroeder. Thank you, Mr. Chairman.
Mr. Edwards. The subcommittee is adjourned.
[Whereupon, at 11:35 a.m., the subcommittee adjourned, to re-
convene subject to the call of the Chair.]
75
APPENDIX
HARPO. INC.
Material Submitted for the Hearing
HARPO
1 10 North Carpenter Street
Chicueo. Illinois 60607
312.633.1000 Fax 312.633.1111
Oprah Winfrey August 2, 1993
Chairman ol the Board
The Honorable Don Edwards
Chairman
Subcommittee on Civil and Constitutional Rights
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Re: Hearing on the National Child Protection Act of
1993
Dear Mr. Chairman:
I write to express my continued strong support for H.R.
1237, the National Child Protection Act of 1993. I am extremely pleased
that the Subcommittee on Civil and Constitutional Rights held a hearing
on July 16 to consider the legislation, and I am hopeful that this hearing
will lead to the quick enactment of the Act.
I understand that, although all of the witnesses expressed
support for H.R. 1237, some technical concerns were raised at the hearing.
To assist the Subcommittee in addressing these concerns, I have asked my
legislative counsel in this matter, Governor Jim Thompson, to prepare the
attached comments on my behalf. Please call upon Governor Thompson
or his staff if they can be of further assistance. I ask that this letter and
the attached comments be included in the record of the hearing.
As you may recall, you and I met to discuss a draft of this
legislation in November, 1991. I am sure you share my frustration that
other issues have prevented Congress from enacting this necessary
measure. Although much more needs to be done on the whole range of
76
child abuse issues and programs, H.R. 1237 would greatly help prevent
one of the most preventable forms of child abuse ~ abuse outside the
home by those already convicted of child abuse or other serious crimes.
I urge the Congress to act as quickly as possible to put this important
protection in place.
Again, thank you for your unceasing efforts to protect our
nation's children.
Attachment
77
BEFORE THE SUBCOMMITTEE ON CIVIL
AND CONSTITUTIONAL RIGHTS
OF THE COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
COMMENTS ON BEHALF OF OPRAH WINFREY
ON H.R. 1237,
THE NATIONAL CHILD PROTECTION ACT OF 1993
* • * *
Washington, D.C. Counsel to Ms. Winfrey:
August 2, 1993
Governor James R. Thompson
Edward F. Gerwin, Jr.
Winston & Strawn
1400 L Street, N.W.
Washington, D.C. 20005
(202) 371-5700
78
COMMENTS ON BEHALF OF OPRAH WINFREY
ON H.R. 1237,
THE NATIONAL CHILD PROTECTION ACT OF 1993
On behalf of Ms. Oprah Winfrey, we appreciate the opportunity to provide the
Subcommittee on Civil and Constitutional Rights with the following comments on H.R. 1237, the
National Child Protection Act of 1993 (the "Act"). These comments address specific concerns
voiced at the July 16, 1993, hearing on the Act.
As a general matter, we note that many of the specific concerns raised at the recent
hearing -- such as the overall accuracy of criminal records and the availability of insurance --
involve matters beyond the scope of the proposed legislation. Although H.R. 1237 will provide
incremental help in addressing these difficult problems, Congress must also undertake broader
efforts to address these important and longstanding issues. In the meantime, Congress and the
Administration must work to implement the Act in the current environment. Our nation's children
should not be subjected to preventable instances of child abuse.
l. The Accuracy of Criminal History Records
At the hearing, the Federal Bureau of Investigation and others expressed concern
over the accuracy and currency of criminal history records. In particular, it was noted that a
substantial percentage of criminal records lack up-to-date disposition information.
The concern with the accuracy of background check records is certainly appropriate.
In view of the importance of accurate criminal history records for background checks under H.R.
1237 and current statutory schemes, as well as for law enforcement in general, the Federal
Government and the states should devote the resources required to update and improve these
important records.
Inaccurate or incomplete criminal history records could have serious consequences
for those individuals whose backgrounds are searched. H.R. 1237, as currently drafted, addresses
this concern by establishing strong protections for the individual. The Act includes detailed privacy
provisions and an expeditious procedure to permit individuals to challenge and refute inaccurate or
outdated information in a background check.
The lack of current disposition information on many criminal history records may
unduly narrow the information available for background checks if such checks are limited solely
to convictions. Consequently, the Subcommittee should consider amending section 3(a) of the
current bill to permit background checks to include arrest information.1'
The well-being of our nation's children requires the prompt implementation of a
nationwide criminal history background system and concurrent efforts to improve the accuracy of
criminal records. As current state experience has shown, improvements in background check
systems - even with the current systems of records - will reduce the number of children wounded
and threatened by child abuse.
n. Burdens on the States and Voluntary Organizations
Witnesses at the hearing noted that the Act will place financial burdens on the states
and voluntary organizations. The National Conference of State Legislatures noted that the
At the hearing, the Civil Air Patrol (the "CAP") supported the inclusion of both
convictions and arrests in background checks covered by H.R. 1237. The CAP, which
has had substantial experience with a background check program, noted that a pattern of
arrests is often a good indication of a potential to abuse children. We support the
inclusion of both arrests and convictions as the best means to assure the protection of
children.
79
$20,000,000 which would be authorized to implement the bill would not be sufficient to update the
records of the various states. Witnesses from voluntary organizations stated that the Act would
burden their organizations if a fee is assessed for each check.
As noted above, accurate criminal records and efficient records systems are required
for a whole range of law enforcement reasons. H.R. 1237 provides incremental financial help to
improve such records and systems. Other funding must, however, come from other sources For
example, if a firearms background check system is implemented. Congress must authorize and
appropriate substantial, additional funding to improve records and systems. We encourage the
federal government to work with the states to find the resources to make this program work.
To reduce the financial burdens on voluntary organizations, the Federal and state
governments should consider flexible payment requirements for background checks. Those
organizations and individuals that are able to pay for background checks should be required to do
so. Other organizations, particularly volunteer groups, may find the costs of background checks
to be prohibitive. Sliding scales could be implemented to allow certain organizations to pay a
reduced rate for a background check. In addition, banks and other for-profit organizations and
individuals subject to firearms background checks might be assessed a small fee for each
background check. This fee could fund child care background checks for deserving
organizations.27
m. Access to Background Check Information
Concern was expressed at the hearing about the privacy implications of providing
background check information directly to qualified entities under the Act. As Chairman Edwards
noted, however, such information is already provided to banks and similar organizations under
current law. Moreover, as noted above, H.R. 1237 contains strong privacy protections.
If, despite these considerations, the Subcommittee believes that background check
information should not be shared with qualified entities, an alternative exists. As set forth in the
original draft legislation presented by Ms. Winfrey in 1991 , qualified entities could require potential
volunteers and employees to provide a written summary of any past crimes. This information could
then be supplied to the state agency, which would check it against criminal records and either
confirm the accuracy of the information supplied or report that a discrepancy existed. The
responsibility would then rest with the qualified entity to clarify any discrepancies with the applicant
and to resubmit corrections to the state agency. Although this alternative may involve more steps,
it ensures the same result - child protection.
IV. Evaluation of Background Check Information
Some of the remarks made at the hearing suggested that the Act required the state
agencies conducting background checks to determine whether an individual should be offered a
child care position within an organization. This is incorrect.
As currently drafted, H.R. 1237 leaves to the organization requesting the search the
decision whether to offer an individual a position (paid or volunteer). Although many states have
specific fitness criteria for narrowly-defined classes of child care workers, the states are not
equipped to conduct screening for other purposes, particularly for voluntary organizations. Each
such organization must be free to determine, on the basis of many relevant factors, whether an
individual would make an appropriate volunteer or employee. In some situations, for example, the
entity may determine that a person who has committed a background check crime can, nonetheless,
make a valuable contribution to the organization, possibly in a position which allows only
supervised time with children.
v A number of voluntary organizations noted that requiring background checks would
discourage volunteers from participating in their organizations. We would hope that, by making
background checks more routine and by emphasizing the importance of such checks, H.R. 1237
would help prevent the loss of volunteers.
80
V. Broad Coverage of the Act
At the hearing, Congressman Canady questioned whether the Act was intended to
include ajl child care providers and reach so broadly that it included "sunday school teachers. " In
addition, representatives of the Boy Scouts suggested that the Act should not cover voluntary
organizations.
It is essential that the Act have broad application. The problem of child abuse is not
confined to day-care centers. It has crept into every type of child care situation - public and
private schools, summer camps, volunteer organizations ~ even church youth programs are not
immune from the risk of child abuse. According to Andrew H. Vachss, a nationally-recognized
expert on child abuse, predatory child abusers often seek access to children in voluntary
organizations. This frightening fact was reiterated at the hearing by the Civil Air Patrol. Child
abusers have formed deviant societies whose sole purpose is to locate and infiltrate voluntary and
other organizations which allow them unsupervised contact with children.
In considering the broad coverage of the Act, it is important to bear in mind that
participation in the Act's background check system is purely voluntary; the Act does not require
organizations to conduct background checks. The Act merely makes background checks available
to qualified organizations. Sunday schools and Boy Scout troops that believe that they can protect
against child abuse without resorting to background checks would remain free to do so. The
Subcommittee must assure, however, that the widest possible variety of organizations have the
option to seek nationwide background checks.-'
VI. Insurance and Liability
A final concern raised at the hearing involved the difficulty some volunteer
organizations are experiencing in their efforts to obtain Sexual and Molestation Exposure coverage
("SAME"). According to these organizations, the insurance industry is currently unable to assess
the risks of sexual molestation within child care organizations.
Although this important problem goes beyond the scope of the Act, the Act should
provide some help in addressing the insurance issue. The Act will ensure more accurate and
consistent reporting of sexual abuse incidence, thereby providing insurance companies with a better
means to evaluate the risk. In addition, organizations that take advantage of the Act's procedures
will reduce their potential exposure for incidents of child abuse.
VII. Conclusion
As Congresswoman Schroeder noted at the hearing, it is currently easier to track
stolen cars than to screen for potential child abusers. The National Child Protection Act of 1993
seeks to correct this unfortunate imbalance. On behalf of Oprah Winfrey, we look forward to
working with the Subcommittee to resolve any technical concerns and to assure the prompt passage
of the Act.
Washington, D.C. Counsel for Oprah Winfrey:
August 2, 1993
Governor James R. Thompson
Edward F. Gerwin, Jr.
Winston & Strawn
1400 L Street, N.W.
Washington, D.C. 20005
(202) 371-5700
Many volunteer organizations, such as the Civil Air Patrol and Big Brothers/Big Sisters,
have already designed and implemented child protection programs which incorporate
currently available background check systems. Other organizations should have this
option.
81
Vigilant in the Protection of Our
Children or Vigilantes?
Legal Considerations in Drafting Screening Laws
and
Recommendations for Safeguarding Children
In Child Care Settings
Prepared by:
Abby J. Cohen
Managing Attorney
Child Care Law Center
625 Market Street, #815
San Francisco, CA 941C5
(415) 495-5498
© 1985 Child Care Law Center,
a special project of the
San Francisco Lawyers' Committee for Urban Affairs
82
I. Introduction
During the past year, allegations of child abuse, particularly
child sexual abuse, have garnered widespread media attention.
While statistics gathered nationwide indicate that an overwhelming
82% of child abuse is committed by family members and experts
acknowledge the importance of child care in the prevention,
detection and treatment of child abuse, * most of the publicity
has focused on allegations of abuse occurring in child care
settings. These allegations have prompted legislators, parents,
child care givers and licensing officials to seek more effective
strategies to protect children in child care. While few would wish
to detract from attention which raises the public consciousness
about the seriousness and prevalence of child abuse, nor criticize
good faith legislative efforts to protect children, thus far the
consequences of media and legislative attention are not all
salutary.
Too frequently, the media maligns child care generally, never
emphasizing its positive aspects. Such coverage usually discounts
or ignores the dedication of thousands of child caregivers who
provide an essential service to children and their parents in the
face of low wages, long hours and little recognition for the
importance and difficulty of their work. Additionally, such
coverage also tends to shower guilt on parents who already face
conflicts because of the lack of accomodation our society has made
for working parents.
83
Similarly, many legislative responses focus only on screening
out criminals or stiffening criminal penalties for offenders. In
many states, criminal record history screening has been put into
place without the thorough consideration such measures require.
Additionally, little attention is given to a cost/benefit analysis
of screening. Recent statistics from New York City, similar in
result to California statistics, reveal that less than 1% of those
screened had prior felony convictions.2 Most importantly,
attention is diverted from measures which are already proven or
have the potential to expand and improve child care programs,
thereby reducing the risks of improper or inadequate care.
One of the responses to allegations of child abuse in child
care settings was the passage of P.L. 98-473. The paper which
follows: 1) describes P.L. 98-473, 2) sets out the legal and
non-legal aspects which ought to be considered in drafting a
national criminal record screening law which complies (and/or goes
beyond) the requirements of P.L. 98-473, 3) sets out considerations
in developing laws or regulations dealing with employment history
and background checks and 4) concludes with a list of
recommendations for avenues other than screening to prevent child
abuse in child care settings and to provide better regulatory
enforcement once child abuse is suspected.
II. P.L. 98-473
As currently written, P.L. 98-473 requires states, in order to
obtain their full Title XX appropriation, in FY 1986 or 1987, to
have in place by September 30, 1985, procedures, (through law or
regulation) to provide for employment history and background checks
84
and a statute which provides for nationwide criminal record
checks. These checks are to be done on current and prospective
operators, staff and employees of "child care facilities (including
any facility or program having primary custody of children for 20
hours or more per week) and juvenile detention, correction or
treatment facilities." No further guidance is given.
III. DEVELOPING A CRIMINAL RECORD SCREENING LAW
A . Why a model statute and regulations are not provided here *
After attempting to construct a model state statute for the
national criminal record screening of child caregivers which
would be in compliance with P.L. 98-473, it became apparent
that this would not be possible for three reasons. The
reasons are:
1. DHHS has chosen not to clarify programs and activities to
be regulated within the meaning of P.L. 98-473, but has
left this to the discretion of the states; (see Federal
Register, January 15, 1985 p. 2090).
2. the wide variation among states regarding which child
care and juvenile programs are regulated, to what degree
and by whom;
3. a desire to distinguish what is required by the law, what
is optional but desireable, and what is undesireable .
1 . Amending existing legislation
P.L. 98-473 requires screening of a variety child caring
institutions all of which may not be regulated
* The Child Care Law is available, for a fee, to provide technical
assistance in the drafting of screening statutes tailored to th-
needs of individual states and in compliance with P.L. 98-473.
Contact Abby Cohen, Managing Attorney, Child Care Law Center, 625
Market Street, Suite 815, San Francisco, CA 94105. (415) 495-5498.
85
under the same state law. Consequently, states will
either have to pass a law amending all of these
regulatory schemes, amend each law individually, or if
they are fortunate and all forms of employment covered by
P.L. 98-473 appear in one law, amend only that.
Additionally, they may have to amend the laws in their
states governing the state agency which does criminal
history checks to authorize that agency to send
fingerprints to the F.B.I, and to share information it
has, and information it receives from the F.B.I, with the
pertinent regulatory agency which will make the
employment decisions. *
2. Definition of those programs and providers of care
covered
In order to comply with P.L. 98-473, and P.L. 92-544, all
staff, operators and employees of defined programs need
to be explicitly identified in the statute. Each state
must determine what types of child care facilities exist
in its state which have primary custody of children for
20 or more hours per week and which programs operate
which can be considered juvenile detention, treatment and
correction centers. While monies under P.L. 98-473 are
limited to the training of licensed or registered
providers of child care, operators and staff of licensed
or registered child care, licensing and enforcement
officials and parents, the definition given for those
programs and providers covered in the screening mandate
is not similarly limited. At the very least, in the area
of child care, a law should cover anv regulated (whether
licensed, certified, registered or approved) child care
program which operates for 20 hours or more per week.
Each state also should address the following concerns:
a. whether the statute also should include: public/private
schools, foster care and forms of regulated child care
which operate for less than twenty hours per week. In
addition, when care takes place in a home, consider
whether adults (other than the provider) residing in the
home should also be screened. This is not required under
P.L. 98-473.
b. how it plans to deal with substitutes and
volunteers. Depending upon how one defines "employees"
under the statute, substitutes and volunteers may be
employees or they may not be. Even if they are not
considered employees, a state may still choose to screen
* It is the author's contention that the regulatory agency, not an
operator should be receiving this information and making employment
decisions. For reasons why, see section 4d below.
86
volunteers. California takes a middle ground. Its law
provides: "...In determining who has frequent contact,
any volunteer who is in the facility shall be exempt
unless the volunteer is used to place [sic, replace] or
supplement staff in providing direct care and supervision
of children in care. ...This section does not apply to
adult volunteers or adult staff employed by the applicant
on an intermittent basis for less than 10 days per month,
provided that these adults are under constant supervision
by adults who meet the requirements of this section."
Substitutes may need special provisions so they do not
have to be cleared over and over again at different
programs. On this point California law provides:
".... For the purposes of compliance with this section,
the department may designate a child care resource and
referral agency or other agency in each county to
maintain a file of criminal record clearances [as
previously defined] , for individuals employees on a
temporary basis by applicants in that county."
c. Unnecessary Duplication: Possible special provisions so
that persons like public school personnel who may already
have been screened recently (it may be desireable to
place a time limit on how long ago clearance occurred) do
not need to undergo screening again if they now seek
employment as child care providers.
3. Need to cover current and prospective operators, staff.
To avoid an enormous deluge of checks to be done when the
law becomes effective it is desireable to phase the
program in. A recent bill proposed in Arizona does
this. 3 when the law becomes effective, hiring of all
prospective operators, staff and employees will be
conditional on clearance but current operators, staff and
employees will be checked when their own license or their
employer's license is up for renewal.
4 . Adopting a clearance procedure
Beyond defining who is to be checked, the statute should:
a. specify when checking will be done. When a prospective
operator is to be checked, fingerprints should be
submitted at the time of application for licensure.
Depending on the length of time required for processing,
states may either issue a license upon clearance, or
grant a provisional license which becomes a regular
license when clearance occurs. The statue should also
specify if another check is requires when a license is to
be renewed. (California's check is once only). When
persons being checked are prospective staff or employees,
the statute should require that these persons submit
fingerprints to the regulatory agency within a certain
number of days after they begin work (i.e. 20 days) and
87
state explicitly that permanent employment will be
contingent upon obtaining clearance. [In the case of
state and employees, clearance can either be required at
the time of new employment or a clearance could be issued
and kept on file at the time of the first job and could
last for a specified period] .
b . Authority to conduct the criminal records check
The statute should require notification to the applicant
that a criminal record check will occur, explicitly
authorize the regulatory agency to submit the
fingerprints to the state justice agency, and further
empower that agency to submit prints to the F.B.I.
c What will be considered necessary to obtain clearance
Each statute should clearly set forth the grounds upon
which employment can be denied. It is unwise to leave
this to guesswork or "guidelines".
(1) Convictions, not arrests for specified crimes should
be used. Use of arrest data is not advised, for a
number of reasons. First, because minorities are
arrested at a disproportionately higher rate than
whites, automatic disqualification for employment
based on arrests without convictions is violative of
Title VII. (See George v. Litton Systems. Inc. 472
F. 2d 631 (1972)). Secondly, arrest data is
notoriously inaccurate. Misinformation may be
compounded, never leading to a conviction, but
resulting in a criminal history record a mile long.
Just recently, a "Michigan man filed suit charging
that he was wrongfully arrested five times in less
than 14 months after an arrest warrant for a man
using his name was placed in the national computer
system of the Federal Bureau of Investigation."4
Conviction" should include a finding, verdict or
plea of guilty or a conviction following a plea of
nolo contendere. The names of crimes will vary,
state to state, but should include:
(a) sexual abuse, assault, exploitation, (both
against a minor and adult)
(b) incest
(c) rape
(d) murder
(e) kidnapping
88
(f) contributing to the delinquency of a minor
(g) felony offenses involving narcotics
(h) violent felonies (armed robbery)
(2) The statute should also state that conviction of
crimes of the same nature in other states and
jurisdictions are also grounds for denial of
employment.
(3) States should provide a mechanism for discretionary
review if they consider every kind of criminal
conviction. A good example of this type of system
is California. Because California looks at all
convictions other than minor traffic violations, it
provides that an exemption from disqualification may
be granted to one convicted of crimes other than
child abuse if the director [of the state licensing
department] has substantial and convincing evidence
to support a reasonable belief that the applicant
[and the person convicted of the crime, if other
than the applicant,] are of such good character as
to justify exemption. To make this determination
the regulations consider:
1. The nature of the offense committed.
2. Time elapsed since the offense was committed.
3 Number of offenses
4. Circumstances surrounding the commission of the
crime that would demonstrate the unlikelihood
of repetition.
5. Activities since conviction, such as
employment, education or participation in
therapy, that would indicate rehabilitation.
6. Character references
7. Certificate of rehabilitation from a court.
However the state should choose to consider
convictions, it should balance the risk to children
versus the employment rights of persons who have
89
criminal conviction records. Simply stated,
conviction data should only be used if it is
relevant and recent.
d. Who makes the decision
The statute should clearly specify who will make the
hiring/termination decision. In the author's view,
it is essential that the determination be made by
the regulatory agency and not by the child care
program operator or provider. The reasons are:
(1) expertise. An agency reviewing numerous criminal
history records is in a better position to pass
judgment upon whether termination or hiring is
warranted.
(2) liability exposure. The state, not individual
programs, is in a better position to absorb the cost
of potential lawsuits.
(3) decision making by the state obviates the need for
programs to develop confidentiality procedures for
the receipt of criminal history information.
(4) Keeping irrelevant criminal history record
information out of the hands of employers eliminates
the potential for bias against those who were
wrongfully arrested and ex-offenders who have been
rehabilitated.
(5) provides for greater uniformity throughout a state
on what is a minimum standard for employment.
(6) since the state will have to do the clearance on
individual operators who have no "director" above
them anyway, it makes little sense to divide the
same task between the regulatory agency and child
care operators.
(7) since a model statute should include an opportunity
to appeal an adverse employment decision it makes
sense that an agency with appeal procedures already
in place (the regulatory agency) should handle
appeals. It then makes little sense to divide the
tasks of making employment decisions and rendering
decisions on appeals.
e. Due process- notice and an opportunity to be heard
Once a determination is made, applicants should be
advised of the decision in writing, whether
90
favorable or adverse. (If staff and employees are
screened, staff employees, and employers should both
be notified) . If the decision is not favorable, the
reasons for termination or unwillingness to hire
should be spelled out. Finally, applicants should
be informed of how they can appeal the adverse
decision — to what agency, within what time frame,
etc. Any hearing should be conducted with the usual
array of due process safeguard granted in other
administrative hearings.
C. Non-legal aspects
Costs : Costs for doing the national criminal records checks
(F.B.I.) are estimated to be $12; state screening costs must be
added to this figure. By statute or regulation, states should
specify who will pay these costs. For example, in California, no
fee is charged for fingerprinting or obtaining the criminal record
of persons who care for six or fewer children. Additionally, as a
procedural matter, screening should occur at the state level before
prints are sent to the FBI; if the person is found unacceptable at
the state level this obviates the need, and resulting expense, of
doing the national screening.
D. ftPPPQVAL
Finally, any statute which intends to utilize the F.B.I, for
national criminal record checks must be approved. Approval should
be obtained before your bill goes to the legislature for passage.
Contact Mr. William H. Garvie, Identification Division, FBI,
Washington, D.C. 20537, (202) 324-5456.
IV . Background Checks and Employment History
In addition to the national criminal record screening law just
outlined, states wishing to receive their full Title XX
appropriation must also have in place laws or regulations which
provide for background checks and employment histories. Again, the
DHHS has given no guidance as to what is appropriately within the
91
scope of a "background check" or "employment history", how these
activities are to be undertaken, or by whom. Most of the
considerations outlined previously will be equally relevant in
drafting a background check or employment history law. Some
measures states might wish to consider are:
A. Attestation To "Clean" Criminal History
States can require that those being screened also sign a
declaration under penalty of perjury that they have not been
convicted previously of crimes specified by the state.
B . Checks of Dependency Determinations and Parental Terminations.
States can require that persons who as parents or guardians of
a child have had their parental rights terminated or whose
children have been adjudicated to be dependents of the state
shall not be approved as operators, staff or employees.
C. Checks of Licensing History
States can also require that checks be made of any previous
denials, revocations, or refusals to renew which occurred in
operating facilities for dependent persons (children, elderly,
etc. ) .
D. objections To Use of the Child Abuse Registry
Some states have chosen to use their child abuse registries
for screening. Without going into an extended discussion,
this author contends that registries should not be used for
screening because they were developed for intra-family abuse,
are frequently ambiguous in defining whether conduct is to be
* An in-depth examination of this topic is available from the
Child Care Law Center. Please request "Use of Statewide Central
Child Abuse Registries for Purposes of Screening Child Care
Workers. "
92
included in the registry, and if so, at what level or
classification. Additionally, they generally have no
procedures to correct incorrect findings. The author's
comments are limited to use of the registry for screening
purposes, and she passes no judgment on the use of registries
once a complaint or allegation has been made against a child
caregiver. However, there are too many troublesome facts about
child abuse registries for them to be appropriately used by
persons other than law enforcement or child protection
personnel.
E. Employment History
Employment histories should include verification of
educational credentials, and verification of previous places
of employment.
F. Character/Employment References
References by previous employers is critical. Reliance on
friends, relatives and the like should be deemed insufficient.
G. Probationary Period
In addition to the measures suggested above, it is wise to
institute a probationary period to determine a child
caregiver's suitability. Child caregivers should be informed
of the existence of the probation and grounds for termination.
V. Safeguarding Children in Child Carp Settings: What Can Be
noneJ! Some Recommendations
A. Licensing
93
1. Increase licensing' s role in parent education re:
licensing requirements, provider communication,
questions to ask, where complaints can be made,
indicators of child abuse, community resources for
learning about abuse and helping victims of abuse etc.
This should include use of the media, as well as other
methods and materials.
2. Improve complaint process:
-institute toll free numbers
-speed response time and resolution
3. Train licensing personnel re: investigation, gathering
and preserving evidence, identifying child abuse.
4. Make reasonable parental access to a facility a li-
censing requirement.
5. Make availability of parent roster to licensing a
licensing requirement. Parents should also have access
to a roster, although parents can also request their
names be deleted from the list circulated to other
parents.
6. Create a separate division or department to deal
with child care so its unique nature is understood;
within this division separate licensing and
enforcement functions; beef-up enforcement division so
response time is improved — which often means
more resources for the legal department.
7. Require child abuse reports to be cross-reported to li-
censing and vice versa.
8. Provide intermediate sanctions (fines) for physical
plant and other non-endangering situations so that pro-
viders are required to come into compliance or face
monetary sanctions.
9. Timely notification of parents and R & R when a license
is suspended or revoked; development of policies for
notification when administrative action is not as grave
as suspension or revocation.
10. Publicize revocations/denials, non-renewals of licenses
regularly and locally; publicize injunctions.
11. Add injunctive relief (to close down the facility) to
standard revocation orders.
12. Develop method for placing licensing revocations on
criminal history records.
13. Provide for provisional licensing status- with a sta-
tutory ending period.
14. Develop formal methods of complaint information sharing
between :
on cr\c\ r\
94
(1) child care, residential care, foster
care, etc. (be certain to check if they have had
a license before which has been revoked, denied,
etc.)
(2) law enforcement, protective services,
licensing .
(3) state, county, local officials
Require all these sources of information to be checked
out before issuing license.
Keep records when licensee surrenders license.
15. Requirements for employees in centers- check at least
three references thoroughly before hiring; require a
probationary period after hire for evaluation.
16. Require protection for workers through non-retaliatory
provisions for child care workers who report licensing
violations.
17. Require licensing to document and study complaints for
purposes of regulatory reform.
18. Interagency agreements between licensing, protective
services, police, and district attorneys should be de-
veloped so investigatory responsibilities are not du-
plicated, impeded, or left unperformed. Possible joint
investigation by CPS and licensing.
Child Protective Services/Law Enforcement
1. Staff of these agencies should be trained not only in
identifying child abuse, but should understand the
difference between investigations conducted in the home
and those in a child care setting. Preferable use of
child protective worker over police, and if police
used, may want plain clothes in unmarked car.
2. Notification to licensing if CPS and law enforcement
have complaints of child abuse in a child care setting.
3. Development of procedures for investigation of child
abuse in child care, i.e. if parents are not targets of
investigation, interviews with children should be
conducted at home, or at the very least, parents should
be notified before a child is interviewed.
II. Government/Private Resources
A. More resources devoted to;
-provider training in the areas of emergency prepared-
ness, child development, licensing requirements, child
abuse identification and reporting;
95
-adequate subsidies for low-income parents so they have
choices; -increase provider wages so that high quality
staff can be attracted and maintained;
-development and maintenance of R s R
3. ftpfiource and Referral
-establish complaint policies
-develop choosing child care programs, publications
-develop means of training parents to engage in on-going
monitoring of care
-help in training providers regarding child abuse and develop
directories of community resources they can turn to,
-encourage parents to listen to kids- what to expect- normal
separation anxiety vs. symptoms of trouble
-promote providers/parents communication on a regular
basis about concerns
-promote positive media coverage of child care
:. Parents
-learn about licensing requirements
-learn where complaints are to be made
-obtain roster and talk to other parents of children in care
on a regular basis
-listen to kids
-advocate for more resources for child care
-visit programs and see and judge for themselves
-advise R & R and licensing if programs they have been
referred to are rejected on the basis of substandard
conditions
o. Employees
-learn licensing regulations and work with program to meet;
report licensing violations
-advocate for in-service training opportunities,
opportunities to learn about child abuse prevention,
detection and treatment and provider rights and
responsibilities under the child abuse reporting law.
-learn curriculum for teaching children about abuse, learn
about community resources available to interested persons
and victims.
E. Children
-teach about abuse; how they can respond; should be taught
bv trai.-.ed employees.
96
FOOTNOTES
1. See for example the testimony of June Solnit Sale, Director
UCLA Child Care Services (June 18, 1984), Dr. Vivian
Weinstein, Associate Professor of Pediatrics, King/Drew
Medical Center (June 18, 1984), Anne Cohn, Executive
Director, National Committee for Prevention of Child Abuse
(March 12, 1984) and Dr. Vincent Fontana, Medical Director
and Pediatrician-In-Chief, New York Foundling Hospital Center
for Parent and Child Development (March 12, 1984) before the
House Select Committee on Children Youth and Families. (1984)
2. New York Times, January 18, 1985
3. Arizona House Bill 2002, introduced January 14, 1985
4. "Victim Files Suit Over Error that Led To 5 Arrests," New
York Times, February 12, 1985.
97
fi>
0
3IG3ROTHERS/3IG SISTERS OFc^MERICA®
Summary:
ABA Study of Child Sexual Abuse Allegation Reports
(1982 - 1991)
Jane Nusbaum Feller
The ABA Center on Children and the Law
Daneen G. Peterson. Ph.D.
Research Consultant, BB/BS of America
and
The BB/BSA Child Sexual Abuse Prevention Staff Work Group
FEBRUARY 1992
230 Norm Thirteenth Street * Phtlaoelphia • Pennsylvania • 19107 • (215)567 7000 * FAX 121515670394
98
PHBFACB
This report is a summary of the data from a content analysis of sexual molestation reports filed
with Big Brothers/Big Sisters of America (BB/B8A). The analysis was carried out, under contract with
BB/BSA, by the American Bar Association's Center on Children and the Law, and covers allegation
reports Sled over the period 1082 to 1001. The results were reported in a document entitled: Analysis
of Molestations Allegation Reports The reports included in the anahrajs are ushu— Mr atetfana and in
reviewing the findings, the following perspective should be kept in mind.
In the early 1080s, Big Brothers/Big Sisters of America made the decision to collect specific
information about alleged incidents of sexual molestation occurring between a volunteer Big Brother or
Sister and children served. The information was to be collected as BB/BSA learned of such incidents
from ha affiliated agencies. It was anticipated that by doing so, more could be learned about pedophiles
that would hopefully put BB/BSA in a better position to provide guidance to its agencies to 'screen out'
pedophiles from volunteer applicants.
It was understood that the case-by-case information, once gathered, would be confidential and
be kept by a national board appointed legal counsel. The task of gathering the data was assigned to
members of the national organization's field staff.
These field managers were to obtain the information from telephone interviews with BB/BS
agency directors after being informed of an alleged sexual molestation incident. While notifying BB/BSA
of such incidents was not mandatory, the practice was soon generally accepted because executive
directors were eager to obtain guidance on how to handle case records and terminate matches, as well as
how to respond to their staffs, boards of directors, other volunteers, and the media.
Over the years, several different versions of the sexual molestation forms were designed and
used, in an attempt to obtain more definitive information. These reporting forms were not shared with
BB/BS agencies and the reports themselves continued to be privileged information between the field
manager and BB/BSA' s legal adviser, and remain so to this day.
In 1086, the Crisis Management Guide was distributed to agencies. This guide encouraged
agencies to report alleged sexual molestations to BB/BSA, with the reporting often including other
related incidents, as the following summary indicates.
Because the information was gathered initially by telephone inquiries with executive directors
who may not have had the specific information needed for complete reporting, it was not always possible
to obtain all of tRe relevant facts at the time of the initial calls. Furthermore, some of the incidents
happened many years before coming to light and in many cases, because of the time that had passed
prior to the Incident being revealed, neither the alleged perpetrator nor the victim was still known to the
agency.
Since the report forms had not been distributed to BB/BS agencies, executive directors were not
informed as to the information BB/BSA needed in the case of an alleged sexual molestation. Therefore,
such questions as date of initial incidents, frequency and location of molestations, and other such
descript.ve information, would only be known by the agency if the child and/or parent had been
interviewed prior to the telephone inquiries.
It should be noted that during the years covered by this data, BB/BSA was engaged in a range of
programmatic activities that were designed to deal directly with the issue of child sexual abuse. Some of
the materials developed during the late 1980s and early 1990s included the adoption of Standards and
Required Procedures for ONE-TO-ONE service (1986); Program Management Manual (1988); Agency
Self Assessment and Evaluation (1988); EMPOWER: Child Sexual Abuse Education and Prevention
Program (1080); and the design of professional staff training institutes, particularly for caseworkers.
Also, during this period of time, BB/BSA provided a national leadership role to draw the
attention of other n"*"""1 youth organizations to the issue of pedophilia.
The data summarized in the following report, however, represents the first systematic content
analysis of the different forms that were used to report alleged sexual molestation during the nine year
period. It provides a closer look at the perpetrators and victims and the assumed related circumstances.
This first attempt, while inconclusive, indicates that Big Brothers/Big Sisters of America is on the right
track, and directs the organization to design an even more useful reporting form, which should be shared
with BB/BS agencies so that the staffs are aware of relevant data needs.
Dagmar E. McGill
Deputy National Executive Director
February, 1002
99
SUMMARY: ABA STUDY OF CHILD SEXUAL ABUSE ALLEGATION REPOHT3
(1982 1991)
Jane Nusbaum Feller Daneen G. Peterson, Ph.D.
The ABA Center on Children and the Law Research Consultant, BB/BS of America
OVERVDZW Awn pprspf/tttw.
Over the past two decades, it has become increasingly apparent that child sexual abuse exists in
our society and that the sexual abuse occurs in a variety of settings and is perpetrated by many types of
people. Both in the media and in academic circles, intrafamilial abuse has been a major focus. Sexual
abuse in day care (and in other institutions such as schools, residential treatment centers, and foster
homes) has also received significant attention, particularly from the media. However, in the context of
volunteer youth serving organizations, child sexual abuse has not been widely studied. Apart from some
negative publicity for these organizations whenever an allegation of this nature surfaces, little has been
written on the subject, and even less actual research has been conducted. This analysis of BB/BSA
molestations allegations reports is a first step in that direction. This summary covers 304 written
reports of allegations encompassing the years 1982 to 1991. Unfortunately, a major problem effecting
the interpretation of the data was the lack of documentation or "missing data"! (See Table 1 below).
TABLE 1 - PERCENT OF MISSING DATA BY CATEGORY
Categories %
Affiliate's identifier (last 4 digits) 50.0
Affiliate's locality type 29.3
Civil outcome 85.5
Criminal outcome 31.9
Criminal records check (Federal) 58.9
Criminal records check (Local) 52.6
Criminal records check (State) 54.9
How perpetrator referred to program 65.8
Location of incident(s) 54.3
Month incident(s) occurred/began 70.1
Number of incidents 26.6
Number of months into match incident occurred 44.7
Number of supervisory contacts with perpetrator 73.0
Number of supervisory contacts with victim 62.2
Perpetrator's age at time of incident 40.8
Perpetrator's criminal convictions (other than from records check) 53.3
Perpetrator's criminal history 'other than from records check) 82.2
Perpetrator's educational background 67.1
Perpetrator's employment status 54.3
Perpetrator's length of residence 67.1
Perpetrator's marital status 31.9
Perpetrator's occupation 31.9
Perpetrator's race 76.6
Perpetrator's volunteer or employment experience with children 47.7
Source of allegation to affiliate 25.3
Time of day of incident(s) 67.4
Victim's age range iat date jf incident) 33.6
Victim's age iat date of incident! 53.9
Victim's age iat date of report' -3.9
Victim ^ crade at date of incident; s3.6
Victim j jjraJe iat Jats of report) 70.1
Victim's primary caretaxer 42.2
Y-jr incicc :it s. occurred, b- -.^.m 5S-8
Part f this ir i -Liing iacr • f iij rmation can be attributed to the difficulties in ascertaining
100
particulars in any child sexual abuse case. It is well known that cases are notoriously difficult to prove
in court (civil or criminal) due to the lack of evidence. Two reasons for the lack of evidence are the
involvement of sexual activity and in particular sex involving children. In addition child molestations
usually occur outside the purview of any witness other than the child. Moreover, the child often has
difficulty disclosing the abuse for a number of reasons. He or she may: have been threatened to keep
quiet; feel guilty or embarrassed about the abuse; be traumatized so as to have repressed the abuse;
be too young to verbalized his or her experience or any combination of the above. Thus, the events
BB/BS has attempted to document, by their very nature, defy comprehensive documentation.
Of the reports with information available about the location of the incident (N = 215), 82.8% took
place in urban locations with: 41.9% of the reports occurring in large urban areas; 40.0% in medium
urban areas; 10.7% in rural areas; and 7.4% in suburban areas. In comparison the 1990 Agency
Information Database (AID), which contains the Agency Data Survey (ADS) demographics gathered
from the affiliates nationally, indicates that 60.8% (n=209) of the BB/BS agencies (N = 344) are located
in urban areas. Of those agencies, there is: 21.8% (n= 75) in large urban areas; 39% (n= 134) in
medium urban areas; 29.9% (n= 103) in rural areas; and, 9.3% (n = 32) in suburban areas. Note that the
urban agencies as a group serve more children per agency and that rural agencies as a group tend to
serve fewer children per agency. These facts could explain the discrepancy between the percentiles for
incident location and agency location. What follows is a geographical distribution of the allegation
reports:
TABLE2 - NUMBER AND PERCENTILE OF REPOBTS BY STATE
State (N = 304)
51
%
California
16.8
Florida
38
12.5
Ohio
15
4.9
New Jersey
14
4.6
New York
14
4.6
Texas
14
4.6
Illinois
11
3.6
Massachusetts
11
3.6
Pennsylvania
10
3.3
Virginia
9
3.0
Wisconsin
9
3.0
Arizona
7
2.3
Connecticut
7
2.3
Tennessee
7
2.3
Oklahoma
6
2.0
Kentucky
5
1.6
Utah
5
1.6
Alaska
4
1.3
Georgia
4
1.3
Indiana
4
1.3
Montana
4
1.3
Washington
4
1.3
Alabama
3
1.0
State (Continued)
n
3
%
Arkansas
1.0
Colorado
3
1.0
Maryland
3
1.0
Minnesota
3
1.0
West Virginia
3
1.0
Washington,D.C.
2
.7
Hawaii
2
.7
Idaho
2
.7
Michigan
2
.7
Missouri
2
.7
Nebraska
2
.7
Nevada
2
.7
New Mexico
2
.7
North Carolina
2
.7
Oregon
2
.7
South Carolina
2
. 1
Delaware
.3
Iowa
.3
Kansas
.3
Louisiana
.3
Maine
.3
South Dakota
.3
Missing
1.3
The allegations underlying the reports were first conveyed to affiliates from a variety of sources:
the victim's parent (30.3%\ police (11.5%); a Big Brother or a Big Sister inc'.ading the perpetrator him
or herself (4.9%), the victim 1 4. 9%); agency staff (4.6%); child protective services persor.r.ei (2. 6%;; a
relative i^ther than the parent ofthe victim (1.6%); the victim's guardian (.7%); law enforcement ciher
than police such as the District Attorney's Office ',.7%); and the media (.3%). The 'other' category
'9.5%) included lawyers, mental health professionals, teachers ofthe victims, as weil as the
perpetrators' neighbors, relatives, landlords, spouses, and ex-spouses.
The sources of information for tlus report came from a variety of document.;. ?.-:or to 19S7
there *as a specific BB.T3SA form used to report the sexual abuse allegations. However, the form was
inadequate for capturing all the necessary information needed .'or creating profiles .>t'the perpetrators,
victims, and circumstances and was substantially modified in ">~7. Oth**r c >-umentation gaps occurred
101
because some reports were not made on the standardized forms. Those sources included the
"Inappropriate Conduct" forms, newspaper clippings, a letter, a memo, a note, or some combination of
those. Together the lack of uniformity and the use of inadequate or incomplete forms contributed most
dramatically to the miagmp data problem which in turn limited the mterpretabflity of these datum.
The distribution by number of matches for those agencies found in the reports (N = 253) was:
8.7% with less than 50 matches; 22.9% with 50-100 matches; 37.9% with 101-200 matches; 25.3% with
201-500 matches; and 5.1% with 501-1000 matches. In comparison the 1990 AID indicated that the
match distribution for 417 of the 481 reporting agencies was: 33.1% (n= 178) with less than 50 matches;
25.9% (n= 108) with 50 to 100 matches; 23.5% (n = 98) with 101 to 200 matches; 14.9% (n = 62) with 201
to 500 matches, 2.6% (n= 11) with 501 to 1000 matches.
The reports were processed in three stages: (1) the data was organized into four categories:
incident classifications - perpetrators - outcomes (criminal and civil) - victims; (2) the data was entered
into a database using a statistical computer program called SYSTAT for analysis; (3) the findings were
written up in a report entitled "Analysis of Molestation Allegation Reports". Because of the high
percentages of missing information, for a given variable, it will be very important to view all of the data
analysis and discussion within the context of Table 1 above. While reviewing the following data also
keep in mind that the use of percentiles can be misleading. For example: In a sample of 100 reports,
30% of wfakh involved multiple victims, 90% of which mciuded a Big Brother or Big Sister, 20% of which
! males, equals 5 people.
DJQDENT RKPOHT ABUSE CLASSIFICATIONS
The incidents described in these reports may have occurred years before the reports were filed.
In some cases the child disclosed the abuse only after therapy, sometimes even as an adult. In other
cases the child disclosed the abuse but the agency was not informed until years later. Still other
incidents were discovered when the agency heard about a former volunteer's recent misconduct and,
after interviewing his or her past Littles (or their parents), found out that there had been abuse in the
Virtually all reports were filed after the match was terminated and relatively few identified the
date of the incident. Many (38.3%) of the reports did not (or could not) specify even the year of abuse.
The incidents with available dates (n = 186) occurred between 1964 and 1991. Only .3% (one incident)
was reported for the 1960s, 6.3% (n= 19) for the 1970s; 51.6% (n= 157) for the 1980s; and 2.6% (n = 8)
for 1990s.
The attempt to classify the types of incidents alleged was very difficult. A major part of the
problem was that the incidents were described in "generic" terms such as: molestation, sexual abuse,
sexual contact, sexual exploitation, sexual activities, or sexual misconduct in 35.9% (n= 109) of the
reports. Without specific details of what happened it was impossible to identify the type of alleged
misconduct. The table below represents the best classifications possible in light of the above
ambiguities.
TABLE 3 - TYPES OF SEXUAL ABUSE
Types (N = 304)
Molestation (non-specific sexual abuse)
Inappropriate sexual touching/genital
Oral sex
Penetration penile
'^appropriate sexual touching, other
O'.her
Taking sexually explicit photo-video of victim
Exposing victim ur 1 Laving victim expose self
Shewing pornography to victim
Mastui baiion in victims presence
' .^rctr..t exposure
'. ' -. mutiny another r j iiavt sexual conui .i with victim
.'.iissLiig'L'iLKJ'.owii, unspecified, or missing
%
n
35.9
109
14.8
45
9.5
29
8.6
26
3.9
12
3.5
11
2.3
23
"
2.3
m
1.0
3
-
2
.3
1
14.8
45
102
It is crucial to remember that these groupings often overlap. For example, exposure may be
accompanied by the showing of pornography, or sodomy may be combined with other inappropriate
touching. This overlap was especially common in reports involving more than one incident. For
categorization purposes, the most severe conduct applicable was used. Because the Inappropriate
Conduct forms included allegations of physical abuse, employing prostitutes, and making obscene
telephone calls, they were included in the "other" category.
In 65.1% of the reports, the location of the incident was not specified. In the reports indicating
the location of the incidents (N = 106 ), 72.6% (n = 77) occurred in the perpetrator's home and the vast
majority included showing pornography to the victim. However a substantial portion of the other types
of sexual abuse also took place in the perpetrators home. The remaining incidents occurred in the
perpetrator's car (4.7%, n = 5), in the victim's home (5.7%, n = 6), on a camping trip (6.6%, n = 7), in a
hotel or motel (1.9%, n = 2), in another public place - e.g., a public pool or restroom (4.7%, n = 5), or in
another private residence or building (.9%, n= 1), and (2.8%, n = 3) in multiple places.
No real connection emerged between the reports on the location of an incident (65.1%, n= 198
with missing information) and the time of year the incident occurred (38.8% , n= 118 with missing
information). It is important to understand that a report may have missing information for location or
year or both, which would negate the ability to make any connection at all. Therefore the potential
number of reports useful to the analysis would be something less than 45.7% of the indicated available
location reports.
Where possible (27.7%, n= 84) , it was calculated how many months into the match the abuse
occurred (or began to occur). Most of the incidents happened early in the match. The younger
perpetrators committed their offenses slightly earlier in the match than their older counterparts.
Because information about the month of the incident was so scarce (e.g., 70.1%, n = 213 missing),
the ability to analyze the data was limited. What little data there was revealed a slightly higher number
of incidents in the summer months, particularly in August. There was also no pattern with respect to
the time of day because 83.5% of the information was missing or unknown.
PERPETRATORS
From the outset, it should be recognized that not all of the 304 reports involving child abuse
occurred within the context of a match. In fact, 25.3% (n = 77) of the reports the perpetrators were not
matched to any of the victims. These reports included adult perpetrators (91.1%) who were at some
time associated with a BB,BS agency. The perpetrators fall into the following categories: Big Brothers
(81.9%, n=249); Big Sisters (2%, n = 6); Board Members (4.9%, n= 15); agency staff (2.3%, n=7); Little
Brothers (1.3%, n = 4); other (4.6%. n= 14); missing (2.9%, n = 9). Some (4.6%) of the perpetrators were
never directly involved with BB/BS at all (e.g., the friend of a Big Brother or the husband of a Big
Sister).
For those who had been matched at some time the following table lists the number of matches
each perpetrator had during their tenure as a volunteer.
TABLE 4 - TOTAL NUMBER OF MATCHES PER PERPETRATOR (N= 304)
Matches
1
o
3
4
5
6
19
Missui^ or X A
Most of the reports 94 7C~. u = 28S> involved male perpetrators. Two percent involved female
%
n
33.6
102
19.1
58
13.5
41
4.3
13
2.6
8
1.0
3
.3
1
.3
1
25.3
77
103
perpetrators. In one case (.3%), both the husband and the wife of a couples match were perpetrators.
Marital status of perpetrators was available in 68.1% (n = 207) of the reports. Of those: 57%
(n=118) were single; 22.2% (n = 46) were married; and 14% (n = 29) were divorced. The balance of the
marital status categories was divided into: separated (n = 4); living together (n = 2); widowed (n = 2); and
unknown (n = 2). Since 81.9% (n = 257) of all the perpetrators (N = 304) were Big Brothers, it was not
surprising to find that the above percentages for marital status roughly correspond to the 1990 AID
distribution for male volunteers (e.g., Big Brothers) which was: 51.2% for single volunteers; 38.3% for
married volunteers; and, 6.1% for divorced volunteers.
Information for education was available for only 32.9% (n = 96) of the reports. Of those reports:
65.6% had at least some college experience which was categorized as: 28% (n = 27) some college; 3.1%
(n = 3) associate's degree; 22.9% (n = 22) bachelor's degree; 7.2% (n = 7) master's degree; and 4.2%
(n = 4) professional degree (e.g., Ph.D., medical doctor, lawyer). For male volunteers the 1990 AID
reports that a similar disproportionate number of volunteers (79%) fell in the college educated group.
At the time of the alleged incident the perpetrators identified in the reports ranged in age from
13 (a Little Brother) to age 62. The distribution for age at both the time of incident and the time of
reports were as follows:
TABLE 5 - AGEOFPEEPETBATOEATTIMEOFIN
CEDENT OE AT TIME OF REPO
At time of incident (N = 304)
At tinw» of report (N = 304)
Arc
% u_
% _n_
13-19
2.6 8
1.8 6
20-29
26.0 79
29.4 90
30-39
18.1 55
27.7 85
40-49
8.2 25
14.8 45
50-59
3.3 10
6.0 18
60-69
.6 2
1.2 4
70 +
0 0
.7 2
Missing
40.8 124
17.4 53
Because the question of race did not appear on the latest allegations report form the
perpetrator's race was either not indicated or not known in 77% (n=234) of the reports. Of the
perpetrators reported (N = 70): 59 (84.3%) were White; 5 (7.1%) were Black; 3 (4.2%) were Hispanic; 2
(2.8%) were Asian; and 1 ( 1.1%) was "other* (Indian). A similar distribution for male volunteers can be
found in the AID where: 35.8% are White; 9.2% are Black; 2.3% are Hispanic; .9% are Asian; and 1.8%
are other.
The occupational background and BB/BS association of the perpetrators were as follows:
TABLE 6 - PEBPETEATOB'S OCCUPATION AND ASSOCIATION WITH BB/BS
% male vols
Occupations (N = 203)
%
n
(N = 25,862)
BB/BS Association (N = 304)
_%_
n
Clerical
6.S
14
2.2
Big Brother
81.9
249
Craft
ll.S
24
4.3
Big Sister
2.0
6
Labor
8.3
17
5.3
Board Member
4.9
15
Mgn.: Admin
ll.S
24
142
Agency Staff
2.3
7
Operatives
6.3
14
2.6
Little Brother
1.3
4
Prof.Tech
29.0
59
35.9
Other
4.6
14
Sales
6.3
14
9.8
Missing or N.A
2.9
9
Service
8.3
19
5.9
Student
5.4
11
9.5
Other
2.9
6
2.5
Unknown
.9
o
7.9
104
Over half of all the reports (52.61, n = 160) did not contain information on a criminal records
check and in addition some of the reports (14.8%, n = 45) indicated that a criminal records check was
never done. It should be noted that currently two states. New York and New Jersey, in which 9% of the
incidents occurred (See Table 2), do not have formal mechanisms for obtaining criminal records checks.
In addition, in the past, there have been other states with similar barriers to criminal records checks, the
most notable being California. Only 2.3% of the reports revealed an arrest or conviction from records
checks. Perpetrators with a criminal history discovered by a records check were involved in only one
exposure report, one inappropriate touching report, and one sodomy report. However, 17.1% of the
reports revealed some sort of criminal history information about the perpetrator which was not obtained
by a records check.
Patterns were difficult to discern with respect to the typical perpetrator's experience of working
or volunteering with children, mostly because of a lack of data (49.7%). The spectrum of the youth
related experiences included: other BB/BS programs (n = 22); formal youth serving organizations and
church youth groups (n = 58); recreation activities (n = 27); schools (n = 27); and child care • e.g.,
babysitters, camp counselors (n=12). Twenty of the reports described "other" volunteer experience
(e.g., foster care, less formal activities) and 20 described "other" employment experience (e.g., juvenile
counselors, employees at residential centers for youths). It should be understood that one perpetrator
could fall in several or all of the categories, so the figures given above should be viewed with that aspect
in mind.
Of the 86 perpetrators (28.4% of the total number of reports) for which length of residency
information was available, it was found that perpetrators tended to reside for a substantial length of
time in the community where the alleged incident (s) took place. In fact, 47.7% (n = 41) of the
perpetrators lived in the area for over 10 years; 18.6% (n= 16) for 5 to 10 years; 10.4% (n = 9) for 3 to 5
years; 16.3% (n = 14) for 1 to 3 years; and the balance of 7% (n = 6) for less than 1 year.
In 73% of the reports, no information was given on the number of supervisory contacts during
the match. For those reports that did contain that information (15.5%), the number of contacts ranged
from 2 to 80. Three major issues that can have a direct effect on those number of contacts are: (1)
length of the match; (2) varying definitions of "supervisory contacts"; (3) varying record-keeping
systems and capabilities. Because these issues have a direct impact upon the interpretability of the data
there is little to discuss.
-^ OUTCOMES INVOLVING CRIMINAL AND CIVIL PROSECUTION
For (34.5%, n=105) of the reports, the criminal treatment of the allegations was missing or
unknown. For the others (65.5%, n= 105), the legal system resolutions were as follows: 44 (14.5%) no
action; 80 (26.3%) charged or arrested (no disposition); 31 (10.2%) charged or arrested and conviction;
30 (9.9%) charged or arrested and guilty plea; 5 (1.6%) charged or arrested and dismissal (not guilty); 5
(1.6%) suicides; 4 (1.3%) applicants were rejected or terminated based on criminal history. Unsuccessful
criminal prosecutions were rare among the reports. Only 1.6% of the reports indicated that criminal
charges against the perpetrator were dropped or dismissed, or that he or she was found "not guilty".
Even fewer reports (14.5%, n = 35) addressed the question of civil litigation involving the
allegations. In 85.5% of the cases, this information was missing. Civil resolutions were as follows: no
lawsuit filed (6.3%, n= 19); suit filed against affiliate and resolution unknown (3.3%, n=10); suit filed
against both affiliate and BB/BSA and was settled (n = 2, .7%); suit filed against both and resolution
unknown in = 2, .7%); suit filed against affiliate and settled (.3%, n= 1); suit filed against BB/BS and
resolution unknown (.3%, n= 1); "unknown" which included threats but no suit yet filed (3.0%, n = 9).
VICTIMS
At least one victim was a Little Brother in 71.7% (n = 2181 of the reports and a Little Sister in
4.6% (n = 14) of the reports. Some of the victims were indirectly associated with the program as siblings
(5.9%, n-lS) or other family members or friends (4.3%, n= 13) of a child in the program. Victims who
were generally unrelated to any BBBS program were involved in 32.2% (n = 98) of the reports ie.g.,
perpetrator's own children, others involved in some youth activity, neighbors, or complete strangers.)
Of the 304 reports. 31.9% (n = 97! indicated that multiple victims were involved. The total
105
number of victims (N = 458) included both children participating in a BB/BS program and those with no
connection to the program. However, there were 17 reports where more than one victim was indicated
but the total number was not specified For those reports, the victim count was recorded as a quantity
of "one". As a result, the number of victims (n = 458) is under-represented. Of the 304 reports involving
all victims, 70.7% (n = 215) of the reports indicated that at least one of the victims was matched with the
perpetrator.
More than half (54.1%) of the reports gave no indication of the victim's age at the time of the
incident. For some of the reports where the age of the victim was reported, it was not clear when or
what age was recorded. For example the age recorded could have been: (1) at the time of the incident;
(2) at the time of the report; or (3) at some point during the range spanning the length of the abuse
period.
Preteen and early teenage children comprised a disproportionate number of victims in the
report. This was not surprising because as demonstrated below the percentage of male clients being
served by BB/BS are roughly proportionate to the victim group. What follows is a table of the ages of
the victims at both the time the incident occurred and at the time that the report was made. For
comparison, since most of the victims were Little Brothers (71.7%, n = 218), the following table includes
the distribution by percents of the male clients being served by BB/BS according to the data from the
1990 Agency Data Survey (ADS).
TABLE7 - AGE OF VICTIM AT TIME OF INCIDENT OB TIME OF BEPOBT
AtThneOfInadent(N=130) % OF MALE CLIENTS At Time Of Report (N=214)
Age % n (N= 25339) %_
1
2 1.5 2
4 1.5 2
5 -2
6 .8 1 .9
7 5.8 7 3.0
8 6.2 8 5.9
9 10.0 13 9.1
10 18.5 24 11.6
11 10.0 13 13.3
12 16.9 22 12.7
13 13.8 18 13.0
14 4.6 6 10.4
15 7.7 10 7.9
16 5.6
17 1.5 2 3.6
18 2.1
19 .8 1 1
20
21
22
23
24
26
28 .8 1
Many (43.8^) of the reports involved multiple incidents (i.e. the number of times any one child
was victimized) for ai ieast one of the victims listed. There was no clear relationship between the
number of incidents and the victim's age.
Most cf the reports i85.6<*) were missing data on the principle victim's grade level at the time of
the incident! s .. Those reports in which grade-level information was available are fairly evenly
distributed among the grades with a slightly higher percentage identifying third graders as victim.
n
.5
1
.9
2
.9
2
.5
1
.9
2
3.3
7
3.3
7
6.1
13
10.3
22
10.3
22
12.1
26
11.7
25
8.9
19
10.7
23
3.3
7
5.6
12
2.8
6
2.8
6
1.4
3
.5
1
.9
2
.9
2
.5
1
.5
1
.5
1
106
Of the 304 reports, 42.4% failed to comment on the victim's primary caretaker, and in .7% of the
reports the primary caretaker was unknown. Of the reports that mentioned primary caretaker
(N = 170), the principle victim's primary caretaker was a single parent 90% of the time, of which 89.4%
(n= 152) were females and .6% (n= 1) was a male. This preponderance of single parent households is
similar to the distribution for male clients found in the AID (88.1%). It is not recorded in the AID
whether the single parent is male or female but typically it is the mother.
CONCLUSIONS
If files are to be maintained on the known sexual abuse allegations it is important to reflect on
the issues covered in this report. While the right general questions were asked , sometimes they were
not as specific as they should have been. In many instances, this lack of specificity arose because either
the questions on the forms or their responses were vague. One notable omission was that the forms
didn't ask whether the abuse occurred more than once, and if so, how often and over what period of
time.
It is suggested that the current forms, used for reporting, be redesigned into a single document
which would be used uniformly across the country. The success of such an effort depends not only on
the creation of a new form that asks all the "right" questions, but in the diligent completion of that form
and a nationwide campaign to use the form consistently for all appropriate allegations.
In summary, much of the missing data could be obtained with the use of explicit and uniform
forms; diligent record-keeping and follow up; as well as implementing rigorous reporting policies and
procedures.
107
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AMERICAN BAR ASSOCIATION
Center on Children
and the Law
1600 M Stffr. NW
Wltrimmon DC 200)6
.202. 1)1.2230
ABA Ftt .2021 ))1 2220
.. -j- .\
CMMt *dTT>.n..i..li,. Slj.p
August 13, 1993
The Honorable Don Edwards
Chairman, Subcommittee on
Civil and Constitutional Rights
House Committee on the Judiciary
Rayburn House Office Building, Rm. 806
Washington, D.C. 20515-6220
Dear Congressman Edwards:
On July 16, 1993, the Subcommittee on Civil and Constitutional Rights held
a hearing on H.R. 1237, the "National Child Protection Act." We are
providing information requested for inclusion in the written record of this
hearing. At the outset, we want to applaud the Subcommittee's efforts
toward developing a stronger national system for identifying persons with
criminal backgrounds who work with or seek to work with children. The
proposed Act, which is the subject of these hearings, presents a framework
worthy of consideration.
The American Bar Association Center on Children and the Law is currently
conducting a study which we believe would greatly assist in the planning and
implementation of a national background screening system for child care
and youth service workers. The development of effective legislation, always
a difficult task, is compounded in the present situation by the dearth of
empirically-based literature assessing criminal record screening of child care
and youth service workers. Our current two-year study, funded by the
Department of Justice through its Office of Juvenile Justice and
Delinquency Prevention, will assist in filling this void. The study will provide
a comprehensive overview and evaluation of screening practices, including
criminal record checks, that are used to identify potentially abusive
employees and volunteers and will make recommendations regarding a
national approach to screening. The final report and recommendations will
be completed by June 1994, although some of the results may be available
earlier. (Enclosed is a project summary as well as a legal and social
literature review discussing screening methods, including criminal record
checks.)
Our preliminary findings indicate that there are significant factors that will
impact on the establishment of a national background check system. In
particular, the Committee may wish to consider the extensive time it takes
to receive requested information, typically as long as 6 to 8 weeks, often
108
causing organizations to hire individuals before a background check is completed. Further,
it appears that the criminal record information requested may be incomplete; disposition
data is often lacking or cannot always be linked to an original arrest record. Moreover,
there are significant costs associated with automating and updating criminal history
information systems, as well as in requesting a federal, state, or local background check (for
example, the FBI charges $23.00 per fingerprint check, while state fees may run as high as
$27.00). Ascertaining the extent of these costs and which individual, organization or
government agency will pay for them is, therefore, implicated in any decision to establish
a national background check system.
In addition, the Department of Defense and other federal agencies, pursuant to Subtitle E
of the Crime Control Act of 1990, have attempted to implement provisions similar to those
currently proposed in the National Child Protection Act. Their experience, which will be
reviewed and evaluated in the OJJDP-funded study, would prove invaluable in determining
whether to enact the proposed Act or whether changes are advisable. Specifically, the study
will: (1) indicate the length of time required to implement the criminal background check
systems required of various federal agencies under Subtitle E; (2) detail the costs and
analyze the effectiveness of those systems; and (3) delineate any problem areas that may
have slowed the implementation or made it more costly.
Given the limited funds available in this time of fiscal constraint, and to ensure that
Congress and the states are prepared to adequately fund any legislation enacted, we offer
the Subcommittee this information as it considers the proposed Act. In the event that
related legislation requiring criminal background checks is considered in the future, the
Subcommittee may wish to review the study's findings regarding the effectiveness and costs
of various background screening methods.
We thank you for this opportunity to provide you with information regarding the study and
hope that our comments have proved useful. If we can be of further assistance, please
contact Noy Davis, Esq., Project Manager, at (202) 331-2244.
'.(.,(
— -Susan Wells, Ph.D.
Project Director
/:
Noy S. Davis, Esq.
Project Manager
Kimberly Dennis, M.P.A.
Research Associate
109
EFFECTIVE SCREENTNG OF CHILD CARE AND YOUTH-SERVING WORKERS
Project Summary
.Statement of the Problem
There are many volunteers and paid personnel, working in child/youth-serving
organizations, who have direct contact with children and youth. Most are dedicated and
caring individuals. Too often, though, employees or volunteers of such organizations have
used their position to victimize young persons.
Various state and federal laws and regulations on procedures for screening employees
and volunteers of child/youth-serving organizations have been adopted over the last several
years. However, no comprehensive information is available as to what screening practices
are now mandated and utilized, and how effective particular screening practices have been in
identifying potential employees and volunteers who might harm the children and youth they
would be serving.
Goals of the Project
(1) To provide a comprehensive overview of screening practices, including criminal
record checks, that are used in public and private sector child/youth-serving
organizations to identify potentially abusive employees and volunteers; and
(2) To evaluate the effectiveness of current screening practices in protecting children and
make recommendations regarding a national approach to screening.
Project Specifics
This two-year project has been undertaken by the Center on Children and the Law of
the American Bar Association pursuant to a grant from the federal Office of Juvenile Justice
and Delinquency Prevention. The Center on Children and the Law is a project of the ABA
Young Lawyers Division.
The project staff includes:
Susan J. Wells, Ph.D., Project Director;
Noy S. Davis, J.D., Project Manager/ Attorney;
Kimberly Dennis. M.P.A., Project Research Associate;
Cheryl Hinton, Project Secretary.
In order to utilize certain organizations' considerable expertise regarding issues and
methods involved in this project, the project has established subcontracts with:
Westat, Inc.;
National Collaboration for Youth;
American Public Welfare Association;
National School Boards Association; and
Center for Child Protection and Family Support.
110
Project Methodology
Specific project tasks include but are not limited to:
(1) Developing a directory of child/youth-serving organizations and agencies, complete
with a listing of professions, jobs and volunteer positions, the estimated number of
individuals in those given professions and positions, and the estimated number of
children served. The directory will serve to identify the potential universe of those
who work with or around children and analyze the degree of risk and accessibility to
children in different settings.
(2) Reviewing state statutes, regulations, legislation and policies regarding the licensing
and oversight of child/youth-serving organizations and their professionals and
volunteers. This review and analysis will determine the numerous state requirements
and to what degree these mandates vary both between and within the states for a
given setting.
(3) Conducting a nationwide survey of child/youth-serving organizations regarding types.
costs, and effectiveness of their screening methods. Among other things, this survey
will help capture how often and in what types of organizations screening takes place
and in what types of organizations abuse is most likely to occur.
(4) Conducting an in-depth supplemental study on the effectiveness of screening practices
in conjunction with the Department of Defense. This piece will provide concrete
information on the implementation, results and evaluation of background screening
methods, (in particular, criminal record checks). The Department of Defense makes
an excellent host for such a study due to the law (P.L. 101-647) mandating screening
of all employees in federally-operated or federally-contracted child caring facilities
and the variety of settings (e.g., child development centers, schools, medical
facilities, and voluntary, recreational groups) in which DoD serves children.
Additional project tasks include:
(1) Reviewing relevant legal and social science literature;
(2) Conducting a survey of the insurance industry regarding insurers' requirements and
recommendations for screening procedures by child/youth-serving organizations: and
(3) Preparing a final report, which will include recommendations regarding a national
approach to screening of child/youth-serving organization employees and volunteers.
For further information contact: Noy S. Davis (202) 331-2244 or Kimberly Dennis (202)
331-2669, ABA Center on Children and the Law, 1800 M Street, N.W., Suite 200S,
Washington. D.C. 20036. A copy of The Effective Screening of Child Care and Youth
Service Workers: A Review of the Literature is available from the Center for $12.00. The
Final Report and Recommendations of the Project will be available in June 1994.
Ill
EFFECTIVE SCREENING OF Kimberly Dennis, MP. A
CHILD CARE AND YOUTH- Noy S. Davis, Esq.
SERVICE WORKERS: A ABA Center on children and the Law
Review of the Literature A project of the Young
Lawyers Division,
May 1993 American Bar Association
Prepared under Grant No. 92-MC-CX-0013 from the Office of
Juvenile Justice and Delinquency Prevention, Office of Justice
Programs, U.S. Department of Justice.
Points of view or opinions in this document are those of the
authors and do not necessarily represent the official position or
policies of the U.S. Department of Justice.
The views or opinions expressed herein have not been approved
by the House of Delegates or Board of Governors of the
American Bar Association and, accordingly, should not be
construed as representing the policies of the American Bar
Association.
This report was developed as part of the research project on
Effective Screening of Child Care and Youth-Service Workers
by the grantee, the American Bar Association Center on
Children and the Law.
The project staff includes:
Susan J. Wells, Ph.D., Project Director;
Noy S. Davis, J.D., Project Manager/ Attorney;
Kimberly Dennis, M.P.A., Project Research Associate;
Cheryl Hinton, Project Secretary.
For more information about this report contact:
Kimberly Dennis
ABA Center on Children and the Law
1800 M Street, NW
Suite 200 South
Washington, DC 20036
° 1993, American Bar Association
112
TABLE OF CONTENTS
INTRODUCTION 1
I. PROBLEM STATEMENT 3
A. Growing Number of Children in Out-of-Home Care 4
B. Speculation on the Number of Adults Who Come
Into Contact with Children 5
C. Incidence of Extrafamilial Abuse 6
D. Identifying "Child Abuse": The Need for a Uniform Definition 6
E. Failure to Take Strong Action Against Abuse in
Out-of-Home Settings 7
II. PREVENTING EXTRAFAMILIAL ABUSE -
NO EASY ANSWERS 9
A. Difficulty in Profiling Child Abusers 9
B. The Recidivistic Nature of Child Abuse 1 1
C. Limitations of Attempting to Profile Offenders 13
III. NATIONAL INITIATIVES 15
A. Early Efforts 15
B. More Recent Federal Initiatives 17
IV. STATE SCREENING LAWS:
A MYRIAD OF APPROACHES 18
A. Licensing 19
B. Access to Criminal History Information 20
V. USE OF CRIMINAL RECORD CHECKS FOR
PRE-EMPLOYMENT AND LICENSING PURPOSES 22
A. Background on Criminal History Information Systems 23
B. Child Offender Arrests and Convictions are Lacking 24
C. Likelihood of Discovering an Individual with a Criminal Record 25
D. The Growing Use of Criminal Records for Employment
and Licensing Purposes 27
E. Criminal History Information and Data Quality Issues:
Cause for Concern 29
F. Disadvantages and Criticisms of Criminal Record Checks 34
G. Legal Issues Arising From the Use of Criminal Record Checks 42
H. Unanswered Questions, Unresolved Issues 47
113
VI. OTHER SCREENING MECHANISMS 50
A. Screening Against State Central Child Abuse Registries 50
B. Screening Against State Sex Offender Registries 55
C. National Practitioner Data Bank 58
D. Teacher Identification Clearinghouse 59
E. Application Forms and Personal Interviews 60
F. Reference Checks 63
G. Psychological Tests 65
H. Additional Pre-Employment Screening Options 68
I. Post-hiring/Placement Procedures to be Used
in Conjunction with Background Screening 69
J. Summary Statement Regarding Screening Methods 70
VII. CONCLUSIONS AND RECOMMENDATIONS 70
A. Summary - What We Know to Date 70
B. Preliminary Recommendations for Effective Screening 72
C. Looking Ahead to More Effective Screening and
Other Prevention Efforts 75
ENDNOTES 77
REFERENCES AND SELECTED BIBLIOGRAPHY 81
114
INTRODUCTION
Although it is relatively easy to check on a potential employee or
volunteer's basic professional capability, securing reliable information about an
applicant's moral adequacy is not always so simple. The ever-increasing need
for credible background information is stymied by a limited ability to obtain it.
Organizations that engage child care and youth-service workers are struggling
with this very dilemma — a dilemma that has intensified under the media's
spotlight on sensational child abuse cases and parents' growing anxiety about
their children's safety in out-of-home care.
In response, legislators, child advocates, child- and youth-serving
organizations and other concerned individuals are eagerly seeking out methods
guaranteed to prevent child abuse in out-of-home settings. The search thus far
has unearthed some complex and unresolved issues about extrafamilial child
abuse, while fueling the debate over what is the most effective way to identify
employees and volunteers who may potentially harm the children they serve.
Much of the focus has centered on the growing use of criminal history record
checks. The current situation has thus prompted several questions, including:
► To what extent is child abuse perpetrated by child care and youth-
service workers in out-of-home settings?
► What are the different screening mechanisms available to help identify
potentially abusive employees and volunteers during the selection
and/or hiring process?
►• How effective are each of these screening mechanisms in preventing
extrafamilial abuse?
►
Should child- and youth-serving organizations be mandated by law to
conduct criminal record checks on all employees and volunteers who
may come into contact with children and youth, even if such contact is
on an infrequent basis?
► Is the quality of information gained from screening methods worth the
substantial human resource and financial expenditures, or are there
more cost-effective measures we can take to prevent child abuse?
What follows is a discussion of this quandary, based on a review of
literature (1980 to 1992) pertaining to the screening of employees and/or
volunteers who may be unsuitable to work with or around children. The
emphasis of this report is on the use of criminal record checks to ferret out
unacceptable applicants. Readers should note that our research uncovered few
empirically based studies, reports or articles which document the effectiveness
of screening practices ~ particularly criminal record checks — both in terms of
identifying potential child abuse offenders and making the best use of scarce
115
funds. Taken together, the literature exposed a mix of opinions and
experiences regarding screening of child care and youth-service workers.
Unfortunately, most of these views were not sufficiently backed by the solid,
factual data needed to formulate sound decisions and prudent
recommendations.
This review thus begins with a general assessment of the problem and
nature of extrafamilial child abuse (Sections I and II) and then hones in on
matters specific to screening techniques, in particular criminal record checks.
Topics addressed in Sections III through V include national legislative
initiatives regarding background screening; the myriad of state laws,
regulations and statutes pertaining to screening; and implications of the
growing use of criminal history record checks for pre-employment and
licensing purposes. The latter topic area includes a discussion of criminal
history information and data quality concerns, disadvantages of criminal record
checks and legal issues pertaining to the use of criminal record checks. A
cursory look at other screening options (e.g., state child abuse registry checks,
interviews, psychological tests) is then provided in Section VI, followed by a
final section summarizing some tentative resolutions regarding effective
screening procedures.
Readers should keep in mind that these initial conclusions are general
in nature due to the lack of comprehensive information currently available.
This literature review serves as a first-step in the present ABA Center on
Children and the Law study of effective screening practices used by child- and
youth-serving organizations. The review is intended to bring attention to many
unresolved issues and set the framework for the study's final objective:
developing recommendations for a national approach to the screening of child
care and youth-service workers. This project, to be completed in June 1994,
is made possible with the support of the Office of Juvenile Justice and
Delinquency Prevention.
116
I. PROBLEM STATEMENT
About 10 million young children spend a significant part of each
weekday being cared for by someone other than their parents (Children's
Defense Fund, 1992). Our nation's changing demographics and the growing
number of single-parent and two-parent working households has resulted in an
increased reliance on out-of-home care and supervision ~ a trend not likely to
change anytime soon. And whether or not a child's mother works, increasing
numbers of 3- and 4-year-olds are spending some portion of their day or week
in a group program (Hayes et al., 1990). In addition to child care, there are
many other service providers who help meet the diverse needs of children
(e.g., education, medical care, mental health counseling, legal assistance,
recreation). While the majority of employees and volunteers who work in the
various child and youth settings are dedicated and caring individuals, too
often, an individual has used his or her position of trust to victimize young
people.
At home or in the confines of school, day care or some comparable
setting, child abuse is widespread. Reported incidents of all child abuse shot
up 31 percent between 1985 and 1990 (Senate Judiciary Committee, November
1991). And while close to 2.7 million cases of child abuse were reported in
1991, an additional 6 million cases go unreported each year (Children's
Defense Fund, 1992; U.S. General Accounting Office, 1992). Although it is
recognized that the majority of these incidents happen in the home, pinpointing
the extent of child physical and sexual abuse which occurs in out-of-home
settings is difficult and widely disputed. Most available figures depict child
sexual abuse only, primarily in the day care setting. Finkelhor and Williams
(1988) estimate that about 5.5 children per 10,000 enrolled in day care are at
risk of sexual abuse, a statistic frequently cited. Other studies estimate that
reported rates of abuse in day care centers, foster care homes and schools
range from 1 to 7 percent (Baas, 1990; Daro, 1992; Margolin, 1991b;
Rutledge, 1992).
Despite the picture that most studies paint, extrafamilial abuse is not
limited to day care centers and schools: Over the past 10 years, as many as
800 cases of child sexual abuse by priests have either been filed as lawsuits or
settled quietly out of court by Roman Catholic dioceses. And according to one
author who studied priests' sexuality and celibacy, "for each case that's public
and legal, there's one that's silent and settled" (The Washington Post,
December 4, 1992). The Washington Times reported that the Boy Scouts of
America becomes aware of about 100 cases of child sexual abuse a year and
maintains more than 2,000 cases on file at any one time (May 20-24, 1991,
special series). Similar statistics do not exist regarding physical abuse.
117
A. Growing Number of Children in Out-of-Home Care
Adequately documenting and responding to extrafamilial abuse becomes
more problematic as one begins to tally the multitude of settings in which
offenders seek access to our nation's 68.5 million children: educational
institutions, day care facilities, foster care homes, youth development
organizations, social service agencies, medical care facilities, juvenile
detention, correctional and other law enforcement facilities, recreational
centers, and religious-based programs. Once we consider the swelling client
bases for each respective service provider - due in part to the dissipation of
the "traditional" family, the proliferation of economic pressures and social ills,
and the desire to supplement a child's development with outside activities -
the potential magnitude of the problem becomes startling. Consider, for
example, the volume of children served by just a smattering of various child-
and youth-serving workers:
•
•
•
An estimated 429,000 children resided in foster family homes, group homes
or institutional settings in 1991, an increase of 59 percent from the early
1980s; it's estimated that close to 900,000 children will live in out-of-home
care by 1995 (Children's Defense Fund, 1992).
Public school enrollment rose from 27 million in fall 1985 to 30.4 million in
fall 1991, an increase of close to 13 percent; enrollment is expected to reach
close to 32 million by 1995 (National Center for Education Statistics, 1992).
Approximately 750,000 children and youth received care from mental health
organizations in 1988 (National Institute of Mental Health, July 1991).
The 15 organizations alone that comprise the National Collaboration for Youth
serve approximately 30 million young people each year (Carnegie Council on
Adolescent Development, 1992).
An estimated 35 million children and youth aged 6 to 18 participate in youth
sports programs each year (Martens, 1986).
Arriving at a clear-cut number of how many children and youth are
served in all possible settings is elusive. The bottom line is, "We really don't
know beans about these children. We don't have accurate counts ..." or the
solid data needed to make appropriate policy decisions and to justify spending
scarce resources (Select Committee on Children, Youth, and Families,
September 1986). Efforts are hampered by the large number of unlicensed,
unregulated day care centers and family day care homes, and the fact that
many voluntary and nonprofit organizations do not keep figures on how many
children they serve.
118
B. Speculation on the Number of Adults Who Come Into
Contact With Children1
Given our limited ability to ascertain how many children make their
way in and out of child- and youth-serving organizations, we might instead
focus on how many adults serve children and youth in some capacity.
Unfortunately, definitive estimates on the number of employees and volunteers
in professions that come into contact with children is even more cryptic, in
particular among voluntary and religious-based organizations. While there are
more than 17,000 community-based, youth development organizations and
some 400 private, nonprofit national youth organizations, organizational
staffing levels vary, as does the use of volunteers (Carnegie Council on
Adolescent Development, 1992). The high staff turnover rate, estimated to be
40 to 50 percent annually among some child care workers, compounds the
problem (Hayes et al., 1990; Wilier et al., 1991).
To provide some idea of the total universe of child care and youth-
service workers, Table 1 highlights two of the more prevalent groups of adults
who work with children: child care workers (in center and family day care2)
and school staff.
TABLE 1:
ADULTS WHO COME INTO CONTACT WITH
CHILDREN - IN CHILD CARE & THE SCHOOLS
NUMBER
(approximate)
CHILD CARE3:
Center-based early education program staff
840,000
Regulated family day care providers
165,200
Unregulated family day care providers
694,400 - 2,660,000
Total Child Care Workers
1,699,600-3,665,200
ELEMENTARY & SECONDARY SCHOOLS4:
Public & private schools - admin, and instruct'l staff
3,600,000
Public & private schools - noninstruct'l/support staff
1,425,000
Public and private schools - volunteers
1,361,400
Independent schools - all staff
109,500- 111,000
Total Elementary and Secondary School Staff
6,495,900 - 6,497,400
TOTAL CHILD CARE WORKERS
AND SCHOOL STAFF
8.195.500- 10.162.600
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C. Incidence of Extrafamilial Abuse
Based on the information outlined above, we have determined that
millions of adult employees and volunteers come into contact with children and
youth (about 8 to 10 million in child care and education alone). The next
piece of the puzzle is how much of all child abuse is perpetrated by those
individuals working in child and youth settings. Again, there is no simple
answer.
Estimates of child sexual abuse involving non-familial perpetrators
range from as low as 7 or 8 percent to as high as 62 percent of all sexual
abuse cases; for all types of extrafamilial child abuse, the range is 1 1 to 30
percent (Dube and Hebert, 1988; Gomes-Schwartz et al., 1990; Margolin and
Craft, 1989; National Center on Child Abuse and Neglect, 1990; Simon et al.,
1992; U.S. Department of Health and Human Services, 1985). But accurate
prediction is next to impossible and many authors claim significant
underreporting. Rindfleisch and Rabb (1984b) assert that only one in five
complainable cases in residential facilities may have been reported to child
protection agencies and the complaint rate may be twice as high as
intrafamilial rates. Fuller (1989) noted that perhaps less than 6 percent of all
child molestations are ever reported. And the New York State Subcommittee
on Child Abuse (1983) found that "based on current statutory definitions. . .
more than 80 percent of all alleged incidents of child abuse and neglect [in the
foster care setting] are never reported," 65 percent of which are abuse.
"[W]e do a lot better job of tracking our imports and exports, and the
hours that we work, and all sorts of economic data than we do in tracking how
many children are really physically and sexually abused in the United States,
and how many children die in the United States" (Select Committee on
Children, Youth and Families, March 1987b). Part of the problem is that
abuse may be "quite blatant and well entrenched, or it can be quite subtle - so
subtle, in fact, that supervisory and administrative people in charge may not
know it's going on" (California Association of Services for Children, 1987).
Even if questionable staff behavior is uncovered, an agency may struggle over
whether such incidents actually typify child abuse. How then does an
organization (or an individual who suspects extrafamilial abuse) arrive at an
answer? Are specific criteria used to assess the situation? Are these criteria
applied consistently and across-the-board to all staff? Many child- and youth-
serving organizations are grappling with these and other related questions.
D. Identifying "Cidld Abuse": The Need for a Uniform Definition
Strife over exactly what constitutes child abuse merely accentuates the
confusion over how many children are abused in out-of-home settings. No
standard, uniform definition exists regarding extrafamilial abuse. Classifying
120
acts of sexual abuse may be more straightforward than categorizing physical
abuse, the latter of which is thought to be more prevalent but harder to define,
in part because it is sometimes difficult to distinguish from appropriate
disciplinary actions and may differ according to context. Defining abuse is
thus often based on subjective value judgments. This absence of operational
definitions and guidelines for substantiating all types of institutional abuse
impedes reporting and intervention in out-of-home care settings.
Limited definitions for "child abuse" originated from the intrafamilial
setting. The Child Abuse Prevention and Treatment Act (P.L. 93-247), [later
amended in the Child Abuse Prevention and Treatment and Adoption Reform
Act of 1978 (P.L. 95-266)], defines child abuse and neglect as "the physical or
mental injury, sexual abuse or exploitation, negligent treatment or
maltreatment of a child under the age of 18, or the age specified by the child
protection law of the State in question, by a person who is responsible for the
child's welfare ... as determined in accordance with regulations prescribed
by the Secretary [of HEW]." But Daro (1988) asserts that there is wide
discrepancy in the extent to which individual states have adopted the federal
definition of child abuse: "[TJhere is no single child maltreatment law for the
United States as a whole; instead there are 50 different laws, each of which
has its own definition of maltreatment, standards for reporting known cases of
maltreatment, and its own sanctions against those found guilty of such
offenses." In addition, child abuse laws fall into two distinct categories -- civil
child protection laws designed according to the needs of the child and criminal
child abuse laws aimed at punishing offenders - and their respective
definitions may differ.
While discord over how to define acts of child abuse perpetrated by
employees and volunteers increases reliance on individual judgments and
frustrates reporting and prevention efforts, other fundamental and well-
entrenched factors also help perpetuate the problem. One of these is the
intense disbelief that abuse could ever take place within an organization's own
ranks; a knee-jerk response triggered by an "it can never happen to me"
mentality. Two other sustaining factors are what Lanning refers to as (1)
"public naivety," or a misconception about the offender, and (2) "bureaucratic
irresponsibility," or an apprehension about confronting the problem (The News
Chief, September 28, 1984).
E. Failure to Take Strong Action Against Abuse en Out-of-
Home Settings
Historically, there has been an unwillingness to acknowledge and
confront child abuse which occurs outside the home. While public awareness
has increased, many child- and youth-serving organizations still vehemently
and publicly deny that abuse by staff is a problem. "[TJhe nonviolent sexual
121
abuse of children is more often dealt with as a nuisance offense. The bottom
line is that society condemns child molestation in the abstract, but how it
responds to individual cases depends on the particular circumstances and the
molester's position in the community" (Lanning, 1987). Identification,
investigation and prosecution of child molesters may not be welcomed by
many communities, especially when the offender is considered a pillar of
society (e.g., the individual committed to multiple worthy causes) or believed
to be of superior status to the commoner (e.g., a priest).
Once disbelief wanes, the desire to protect an organization or individual
worker's own position may surface, thereby minimizing the original problem
out of existence. As one education attorney explained, "Unfortunately. . .the
professional reputation of superintendents are at stake. They're not going to
allow their reputations to be besmirched by rampant reports of violence,
vandalism and sexual abuse in their own schools. That perhaps is a more
realistic problem than anything else - the outright reluctance to acknowledge a
problem" {The News Chief, September 24, 1984). However, this defense
mechanism is slowly being worn away by an energized victims' movement and
a growing number of successful lawsuits, as well as other factors.
Those organizations that have acknowledged the reality of abuse often
find themselves in a catch-22 situation: Although they are legally required to
report cases, most strive for minimal publicity and visibility surrounding such
events. The result has been organizational responses that are, at best, informal
in nature. The Archdiocese of Chicago (June 1992b) has admitted that before
1983, very few cases of child sexual abuse were reported to the church. Cases
that were reported were handled internally and "lumped together with other
clinical problems, cases of financial misconduct, and other celibacy-related
problems." An added complication that may prevent organizations from taking
a strong stand on curbing abuse is the lack of financial and human resources to
deal with the problem. Rindfleisch and Rabb (1984b) found that almost half of
the states perceived institutional abuse to be a low-priority issue, in large part
because they lacked the necessary resources to respond.
Even parents may choose to overlook or ignore abusive behavior by
extrafamilial caregivers. Margolin (1991b) studied various contexts in which
sexually abusive providers come into contact with children and found that in
1 1 percent of the cases, either the child told the parent(s) that the caregiver
was touching them or the parent(s) knew that the caregiver had a record of
child molestation or other criminal activity, yet did nothing to change the
situation.
The literature tells us that millions of children spend a substantial
amount of time in some type of out-of-home setting (be it a child care center,
school, recreational center, medical care facility or some other institution); at
8
122
the same time, millions of adults occupy positions of trust that put them into
contact with these children and youth. Given the volume of children and
adults who pass through the doors of various child- and youth-serving
organizations and the fact that out-of-home child abuse does occur and may be
even more prevalent than reported, a closer look at extrafamilial child abuse
prevention is warranted. In doing so, clearer definitions of extrafamilial child
abuse, especially physical abuse, and the willingness of child and youth
organizations to concede that abuse may occur within their own ranks are
needed.
H. PREVENTING EXTRAFAMILIAL ABUSE - NO EASY
ANSWERS
While consensus on the prevalence of out-of-home abuse may be
lacking, there is no denying that the problem exists and demands attention.
Although precise answers on how to best respond are elusive, efforts that
concentrate on prevention are most desirable. Deciphering the prevention
puzzle is not without complications and requires the following initial actions:
► Determining all the steps that can be taken to prevent both initial and
repeated abuse by child care and youth-service workers;
► Discerning which responses are most effective in identifying potentially
abusive employees and volunteers;
► Weighing the advantages and disadvantages of each strategy; and
► Assessing the feasibility of each approach, in light of administrative,
fiscal, technological and political constraints.
Obviously the most appealing strategy for any child- and youth-serving
agency would be to have in hand a clear exhaustive checklist of traits proven
to characterize any and all child abusers. Screening potential employees and
applicants against such a list would be quick, simple, inexpensive and
guaranteed. But the reality is that a guaranteed method does not exist and is
not likely to be developed anytime soon. Until the fervent search yields a
successful formula for identifying potentially abusive employees/volunteers,
child- and youth-serving organizations must be resourceful in their hiring and
screening efforts and consider all available options.
A. Difficulty in Profiling Child Abusers
Growing knowledge and awareness of extrafamilial child abuse,
coupled with extensive media coverage of several exceptional cases, has
resulted in a flurry of public policy and legislative efforts to protect children
from such offenders. Of the many responses (e.g., education, strengthening of
123
reporting laws, tougher criminal penalties), the area least studied and
understood is how to identify adults who may potentially abuse children.
Despite the dearth of tangible information in this area, opinions are abundant.
All opinions, however, lead to the same conclusion: There is no discernible
profile of a child abuser and no system will predict with absolute certainty
whether an employee or volunteer is going to sexually or physically abuse a
child.
Margolin and Craft (1989) concluded that "despite literally hundreds of
studies devoted to delineating the psychological make-up of child sexual
abusers, there continue to be few reliable ways by which these characteristics
can be diagnosed. ..." As one former Scoutmaster convicted of molesting
boys in his troop summed up: "There's no way for sure you can know if you
have somebody in your organization who's gonna do what I did" (Washington
rimes, May 20-24, 1991, special series).
One of the most significant problems is that child abusers may reside
anywhere within an organization: in direct service, management or agency
support roles. Offenders run the employee/ volunteer gamut and include day
care center directors, school administrators, experienced and trusted teachers
and aides, coaches, doctors and dentists, priests and other religious personnel,
janitors, bus drivers, security personnel and even relatives of child care
providers. Finkelhor and Williams (1988) found that 58 percent of reported
sexual abuse cases in day care were committed by a person who was not a
part of the professional day care staff; perpetrators included janitors, bus
drivers and some outsiders with no role in the facility at all. A quarter of the
cases involved non-employee husbands and sons of the day care directors and
teachers. A review of child sexual abuse cases within Big Brothers/Big Sisters
of America revealed that 10 percent involved professional staff, including
executive directors and board members (Wolff, 1986). And of the 43,000
active priests in the United States, it's estimated that 6 percent have
pedophiliac tendencies (Washington Post, November 15, 1992).
While extrafamilial abuse can be perpetrated by males or females, men
are more often identified as the perpetrator. Finkelhor and Williams (1988)
found that even though women made up 40 percent of the abusers in their day
care sample, men were still responsible for the majority of abuse while
accounting for only an estimated 5 percent of the staff. Other studies have
found that males commit between 42 and 95 percent of the abuse (Fuller,
1989; Margolin, 1991a; Margolin and Craft, 1989).
Adolescents as an offender subgroup are receiving increased attention,
in large part because of the prevalence and often more violent nature of their
abuse. Many authors also argue that adolescence is the common age of onset
for child sexual abuse.5 Studies have shown that adolescents perpetrate
10
124
between 25 and 47 percent of physical abuse and from 14 to 83 percent of
sexual abuse (Dube and Hebert, 1988; Finkelhor and Williams, 1988; Gomes-
Schwartz et al., 1990; Margolin, 1991a, Margolin and Craft, 1990). And
according to the Statistical Abstract of the U.S.: 1992, of the over 1.75 million
arrests of children under 18 in 1990, 15 percent were for violent offenses,
over half (8 percent) of which were for sex offenses or offenses against
family/children.
Groth and his colleagues (1982) explain that "all too frequently, sexual
offenses by juveniles are dismissed as merely adolescent sexual curiosity or
experimentation. Since such offenses go unrecognized by the criminal justice
and mental health systems, they are not addressed. No intervention occurs
until the offender is an adult; by then, many sexual assaults and victimizations
may have occurred which might otherwise have been prevented." As depicted
in Figure A on the next page, 40 percent of the 165 juvenile sex felons
committed to Washington State's Division of Juvenile Rehabilitation in 1991
had a prior criminal history, 12 percent of which were for felony sex offenses
(Washington State Institute for Public Policy, 1992). The recognition that
abusive behavior may begin early in an offender's life and persist for the
majority of his/her years is particularly distressing.
B. The REcrorvisnc Nature of Child Abuse
Whether the offender is male or female, young or old, child abuse is
rarely a one-time event and often involves multiple victims. "Given that many
sex offenders have established a repetitive pattern of deviant behavior prior to
an arrest. . . we can expect many sex offenders to repeatedly commit sex
offenses" (Furby et al., 1989). In a 1986 National Institute of Mental Health
study of over 400 child molesters, offenders admitted to committing over
67,000 instances of child sexual abuse, an average of 117 victims per abuser;
those targeting young boys averaged 281 (Senate Judiciary Committee,
November 1991). Other studies place the average number of victims at
anywhere from 7 to 100 (Conte et al.., 1989; Gilgun and Connor, 1989;
Rogers and James, 1991).
Even those offenders who are discovered and convicted often return to
their old ways. A recidivism study by Rice and colleagues (1991) found that
close to one-third of extrafamilial sexual offenders were convicted of a new
sex offense; 43 percent committed a violent or sexual offense. In a
compilation of sex offender recidivism reports, the Washington State Institute
for Public Policy (1992) revealed that 10 to 29 percent of child molesters who
abused girls and 13 to 40 percent of child molesters who abused boys repeated
the offense. The Institute also found that of those adults convicted of felony
sex crimes in Washington (fiscal year 1992), one-third had a prior criminal
history; 44 percent of which were for felony sex offenses (See Figure A).
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Figure A: Percentage of Convicted Adult and Juvenile Sex Offenders in
Washington State Having a Prior Criminal History; Percentage of Each with
Prior Felony Sex Offense
Prior Criminal History P>-|or Fa lony Sex Offense
18888 ftauits ^^ Juveniie6
Source: Washington State Institute for Public Policy, 1992
In a separate California study, the results of a 15-year follow-up of
1,362 sex offenders first arrested in 1973 showed that almost half were
rearrested for some offense, 20 percent for a subsequent sex offense (Lewis,
1988). Reported recidivism rates, according to Furby and her colleagues
(1989), have ranged from 0 to 50 percent, a range "exceeded only by the array
of statutes and policies applied to sex offenders. "
Two cases illustrate the seriousness of the multiple victim problem: In
Washington State, a man was arrested in April 1991 for molesting nearly 200
children in Washington, Oregon, Montana, Idaho and California. His first
conviction dated back to 1969. In another case, a school psychologist was
convicted in 1985 of child molestation in Maryland and after serving time
there later moved to Virginia where he was again hired as a school
psychologist. Six months later he was arrested for molesting 15 elementary
school students (Congressional Record, June 27, 1991). Advocates of criminal
record checks are quick to cite cases such as these to support the need for such
background checks.
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on £/~\0 r\
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The overall message is clear: child abusers cover a wide spectrum and
the "severity, number and type of victims, and permanence of the features
vary from one child molester to the next and also vary with the passage of
time in the same abuser" (Fuller, 1989). When screening for a history of or
potential for child abuse, organizations need to understand that offender
characteristics differ not only between physical and sexual child abusers, but
also within subgroups of sexual child abusers (e.g., situational and
preferential). Given the complexity and diversity of the offender population,
can any one type of screening be effective in identifying a potential offender?
The answer, to date, is unclear.
C. Limitations of Attempting to Profile Offenders
Due to the complex nature of child abuse and the general
unpredictability of human nature, any attempts to assess the potential for
abusive behavior should be broached with extreme caution. Tables 2 and 3 list
a series of offender and situational characteristics thought to be linked with
abuse, in particular sexual abuse.6 These indicators are not gospel and should
not be used impetuously and indiscriminately to label someone as a child
abuser. Concerned readers should withstand the temptation to cull any one
random characteristic, isolated from the slew of other possible contributing
factors, as evidence that an applicant will abuse children. Even in
combination, accurate prediction based on these attributes is just not possible.
The appeal of basing an employment or volunteer placement decision solely on
these variables should be resisted for several reasons:
1) all people will not exhibit all traits;
2) these indicators do not quantify the degree of risk (high, medium, low)
for abuse and under what conditions it may occur;
3) factors associated with initial abuse are not necessarily the same factors
connected to repeated or future abuse;
4) abusive behavior often involves a unique interaction between victim,
situational and offender characteristics, which may differ widely among
individuals; and
5) no documented evidence of predictive validity exists.
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TABLE 2: Possible Offender Characteristics
Traits and Behavior Patterns
Predisposing
frequent and unexpected moves
low self-esteem and ego-strength
inappropriate expectations of child behavior
life stress
depression
unable to form attachments
alcohol and drug use
dysfunctional home situation
history of psychiatric problems
or mental illness
skilled at identifying vulnerable victims and
manipulating children
abused/neglected as a child
feelings of inadequacy and helplessness
poor impulse control and inability
to handle frustration
limited social contacts as teenager
premature separation from the military
unstable work history, min. responsibility
distorted beliefs about sex and children
prior arrests (for all kinds of offenses)
shows sexually explicit material to children
places premium on doing one-to-one activities
with children
over 25, single, never married
if married, spouse inadequate, doesn't
meet needs
excessive interest/overinvested in children
associates and circle of friends are young
limited peer relationships
social isolation
age and gender preference
refers to children as "clean", "pure,"
"innocent"
inadequate understanding of
children's developmental phases
identifies w/children better than w/adults
legitimate access to children (i.e,
occupation)
activities with children often exclude
other adults
seduces with attention, affection and gifts
hobbies and interests appealing to
children
youth-oriented decorations in home
frequent photographing of children
prefers low visibility activities
failure to set limits with children
TABLE 3: Possible Situational/Organizational Risk Factors
institutional constraints and lack
of cooperation among various departments
conflicting interests of staff and clients
limited resources and staff support systems
high rate of staff turnover
perceived organizational inflexibility
staff/child ratio
number of children in care
(is it at full capacity, over/under limit)
limited staff training and/or knowledge
and understanding of parenting skills
lack of well-defined and articulated
philosophy on caretaking/child management
lack of written guidelines/safeguards on
disciplinary procedures and policies
organizational stresses (layoffs, budget cuts)
compliance with laws, statutes and regulations
minimal amount of informal peer observation
lack of clear/distinct line of command and
central, decision-making authority
lack of open communication and
information systems
lack of positive, reinforcing environment
perpetrator's access to child
presence of non-related caretaker
lack of opportunities/mechanisms for staff
to seek supervisory assistance
lack of facility director's involvement
in all aspects of agency operations
agency's practice of matching children
to caretaker/volunteer
community visibility and accessibility of
setting
lack of adequate health care/medical tint
degree to which certain programs/classes
are separated and isolated
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As discussed, the presence of the above characteristics is not
completely indicative that abuse will occur. However, such attributes can be
useful in developing diagnostic tools for evaluation agencies and set the stage
for future prediction research. In addition, certain traits may provide triggers
for further "investigation," or in some cases, may be grounds forjudging an
applicant as unsuitable to work with children (e.g., "shows sexually explicit
material to children").
Given our understanding about the dynamics of extrafamilial abuse and
the fact that to date, efforts to profile and identify offenders have been largely
unsuccessful, what other lines of defense are available to child- and youth-
serving organizations to prevent abuse by employees and volunteers? Some
concerned individuals feel that the time is ripe to step up legislative and
regulatory efforts to build a more solid wall in preventing access to children.
Attempts to create such a strong legal foundation are not without criticism.
ffl. NATIONAL INITIATIVES
The desire to more effectively prevent out-of-home child abuse,
together with growing fear about agency liability, has accelerated the quest for
screening methods to systematically identify child and youth service workers
who are unsuitable to work with or around children. In the last decade, this
quest has settled in the legislative arena. Since the early 1980s, the trend
toward criminal record checks for employment and licensing has intensified,
targeting not only the operators and employees of child care facilities, but also
teachers and youth development/recreation workers. Federal legislative
success, however, has been limited in scope and hampered by lack of funding.
A. Early Efforts
In December 1982, the President's Task Force on Victims of Crime
recommended making sexual assault, child molestation and pornography arrest
records available to those whose employees come into regular contact with
children. In early 1983, Sen. Arlen Specter (R-Penn.) failed to gain the
necessary backing for legislation to prohibit employment of any individual in
juvenile detention, care, correction or treatment facilities who had not
undergone a nationwide FBI check. Later that year, Sen. Charles Grassley (R-
Iowa) introduced legislation addressing employment of those with arrest/
conviction records for child sexual assault, child molestation or child
pornography and proposed creating a centralized registry of all state and
federal arrests and convictions for these offenses, to be termed the "Child Care
Protection and Employees Responsibility File." Concerns about increased
administrative and bureaucratic problems and the potential for abuse of a
special federal "sex crimes" file prevented passage of the legislation
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(Davidson, 1985). However, the idea of creating a national file of criminal
child abuse-related records would resurface.
The "Children's Defense Act of 1984" addressed the cost of criminal
record checks; timeliness of the states' reporting of conviction data to the FBI;
the FBI's response time to state record check requests; and the security and
confidentiality of criminal history records at the state level. This legislation
also died in Congress. But Rep. George Miller (D-Calif.) and Sen. Dennis
DeConcini (D-Ariz.) thereafter introduced legislation, which passed as the
DeConcini-Specter Amendment included in the 1985 Fiscal Year Continuing
Appropriations Act, P.L. 98-473. This amendment tied Title XX funding to
state laws mandating nationwide FBI criminal record screening of employees
in "any facility having primary custody of children for 20 hours or more per
week" as well as all juvenile detention, correctional and treatment facilities.
Congress gave the states less than a year to draft, enact and have in effect the
criminal background legislation, and also directed the Department of Health
and Human Services (DHHS) to develop a Model Child Care Standards Act to
help guide implementation.
The effect of the DeConcini-Specter Amendment has not been
extensive. Not all states enacted legislation for criminal background screening
laws, and the program was not funded beyond fiscal year 1985 (Senate
Committee on the Judiciary, November 1991). Moreover, the DeConcini-
Specter Amendment fell short by failing to address several issues, including:
whether the large number of unregulated child care providers should be subject
to screening requirements to the same extent as those currently licensed; how
the criminal history information should be used in decision-making; to what
extent the confidentiality of the criminal history information must be
maintained; what steps should be taken to increase completeness of state and
FBI criminal record repository data; who should bear the financial burden
associated with criminal record checks; what steps should be taken to minimize
delays in processing the requests; what consequences should flow from failure
to seek or act properly on record information; and what the role o/ the federal
government should be in implementing and monitoring screening. (Davidson,
1985).
The Model Child Care Standards Act, which DHHS issued in 1985 to
help assist in the implementation of the DeConcini-Specter Amendment, was
not particularly helpful in settling these issues. Although it discussed many of
the issues in using criminal history information to screen child care workers
and was useful as a general guide to employment history and background
check regulations, it contained few specific recommendations on these matters.
Of greater assistance in resolving these issues was a 1986 Model Statute
entitled "Employer Access to Sex Offense Criminal History Records." The
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Model Statute, developed by the U.S. Department of Justice in collaboration
with the ABA's Criminal Justice Section, was a commendable effort in
drafting screening legislation. It recommended that all convictions, pending
arrests and two or more arrests not resulting in conviction be released to
organizations whose employees regularly render services to children. This
information was intended to provide employers with a tool to make more
informed hiring decisions. Employers were not compelled to conduct criminal
background checks on all employees because, as stated in the Model Statute,
such a requirement "may result in unwarranted administrative and financial
hardship for both the employer and the disseminating agency." Nonetheless,
to encourage criminal record checks, the Model Statute provided for employer
liability to injured children when available sex offense information was not
obtained and the subject employee injured a child. Thus, an employer seeking
to minimize the risk of liability would conduct criminal background checks.
Also of note is the Model Statute's authorization of reciprocal agreements to
exchange information with other states and the federal government, thereby
providing a framework for the development of a national sex offense criminal
history network. However, the Model Statute was simply a guide for state
action. Moreover, it only addressed access to sex offenses, and not other
relevant criminal history information.
B. More Recent Federal Initiatives
The last several years have brought a flurry of Congressional proposals
regarding child abuser registration and screening - from registering convicted
offenders' addresses for 10 years after their release from prison, parole or
supervision to permitting child care facilities to run background checks by
using the "instant check" system proposed for firearm purchasers.
Only one of these proposals was enacted. In 1990, Congress passed
Public Law 101-647, the Crime Control Act of 1990, which included Subtitle
E: Child Care Worker Employee Background Checks. Subtitle E mandated
state and federal (FBI) fingerprint checks of all existing and prospective
employees in federally-operated or federally-contracted child care agencies. In
addition, Subtitle E encouraged checks on volunteers, adult household
members in places where child care or foster care services are being provided,
and others who may have contact with children. To date, no formal
documentation exists evaluating the implementation and effectiveness of
Subtitle E in screening out potential offenders.7
In November 1991, the Senate Judiciary Committee held a hearing to
discuss the National Child Protection Act of 1991. The proposed legislation,
popularly termed the "Oprah Bill" after its major proponent, talk show host
Oprah Winfrey, included the finding that "[fjhere is no reliable, centralized
national source through which child care organizations, including voluntary
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organizations, may obtain the benefit of a nationwide criminal background
check on persons who provide or seek to provide child care" (Senate
Committee on the Judiciary, November 1991).
The proposed act sought to establish a national background check
procedure for child care providers; encourage reporting of all state and federal
child abuse crimes to the FBI's National Crime Information Center; and
establish minimum guidelines for states to follow in conducting background
checks. The proposed bill also required states, within three years of
enactment, to achieve at least 80 percent of final dispositions "in computerized
criminal history files for all identifiable child abuse cases" in which there had
been action within the last five years. Proponents of the legislation argued that
creating a comprehensive national background screening system would prevent
"literally thousands of dangerous criminals" from obtaining jobs that give them
access to children (ibid). Although this effort was not controversial, it died in
late 1992 as part of a larger crime bill. Its advocates have continued the fight
by reintroducing the legislation in early 1993. Sen. Joseph Biden (D-Del.) and
Rep. Patricia Schroeder (D-Colo.) have each introduced criminal background
check legislation (S.8 and H.R. 1237, respectively) similar to the proposed
1991 bill.
Congressional leaders and policymakers at the national level are not the
only ones in pursuit of a structure to support criminal background screening.
Various state regulatory and licensing agencies, too, have strengthened certain
employment and licensing requirements to help prevent the abuse of children
by child care and youth-service workers. In addition to criminal background
screening through the FBI and state criminal history repositories, state-level
activities have delved into the use of state child abuse and sex offender
registries. (Please refer to Section VI for a discussion of these registries.)
IV. STATE SCREENING LAWS:
A MYRIAD OF APPROACHES
State screening laws generally fall into two categories: (1) licensing
standards requiring or permitting a licensing agency or licensed facility to use
certain screening methods, including criminal background checks, in issuing
licenses or hiring employees/ volunteers who work with children; and (2)
provisions permitting organizations access, through an authorized state agency,
to child abuse or state and/or federal criminal records for screening purposes.
Within each of these categories, there is wide variety in scope and application.
Further, not all state legislation authorizes child-serving and volunteer
organizations access to records in screening workers. Thus, the ability to
conduct criminal background checks before hiring a child care or youth-service
worker may be limited by the reach of the licensing statutes.
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A. Licensing
All states have some legislation regulating day care facilities and in
most states, this includes a requirement to screen at least some of the workers
using criminal records. However, as the literature reveals, the types of
facilities covered, the extent to which screening of workers is required, and
the scope of the screening, varies considerably (Bulkley and Jackson, 1989).
State licensing and registration provisions generally cover specific
categories of facilities, which may or may not encompass the myriad of
entities that provide care for children. Typically, states may require criminal
history record screening in one or more of the following settings: (1) child
care centers, (2) group homes, (3) child-placing agencies, (4) child-caring
institutions and residential settings, (5) independent foster homes, (6) family
day care homes, (7) educational facilities, (8) sources of transportation to
educational facilities, and (9) adoptive homes (Davidson et al., 1991).
Adams (1990) provides interesting statistics documenting some of the
variety in types of child care facilities regulated:
► Although one-third of all child care centers are operated by religious
institutions, 14 states (28 percent) fully or partially exempt such child
care programs.
► A substantial majority of the states (59 percent) fully or partially
exempt those programs operating in public schools.
► More than half of the states (55 percent) exempt all youth programs
operating in adult recreational facilities from all licensing requirements.
There is further variety in screening based on the category of worker.
With respect to criminal record screening requirements, some states exclude
people who have resided in the geographic area for a substantial period of
time. Some states also exempt from the screening process people who do not
have contact with children or who are always supervised by someone while in
the presence of children (such as limited time volunteers). In addition,
screening requirements may or may not apply to parent-volunteers (Davidson
etal., 1991).
Compounding the variety in terms of facilities and persons covered,
state regulations of child care and youth-serving personnel vary with respect to
the screening methods used. Required methods may include employment
history and reference checks, local and statewide criminal record checks (by
name or fingerprints), FBI criminal record checks (requiring fingerprints and
generally done through a state agency), child abuse registry checks, and sex
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offender registry checks. (Please refer to Section V for a detailed discussion
of criminal record checks.)
Several states having fairly comprehensive screening legislation are
discussed in the literature. Florida, for example, enacted legislation in 1985
requiring screening of employees, operators, volunteers and job applicants of
child care, residential facilities, mental health, alcohol and drug abuse
programs, and certain other programs. The screening methods mandated in
Florida include state and federal criminal background checks (by fingerprint)
and employment history checks.8 New York also has broad screening
legislation. New York City's screening regulations, implemented in 1984,
require checks with past employer references, criminal background checks (by
fingerprint), and checks with the state list of New Yorkers indicated for child
abuse and neglect by the Department of Social Services (Rollins, 1985).
B. Access to Criminal History Information
Access to information contained in criminal files is generally restricted.
In recent years, however, there has been a trend towards making criminal
history information more available to noncriminal justice agencies, private
individuals and organizations, and the public. States have passed laws
authorizing criminal record access to youth-serving and volunteer organizations
that provide care, treatment or services to children. As Thomas Wilson of
SEARCH Group, Inc. pointed out in 1988, "[T]he movement towards open
records is happening in a de facto manner: through piecemeal legislation,
through forces for change by interest groups going to their legislatures, by the
challenges brought forth by groups such as the Reporters Committee for
Freedom of the Press, by changes in FBI policy and by increasing access to
criminal history record information by federal noncriminal justice agencies"
(Bureau of Justice Statistics, November 1988b). In addition, some states have
enacted public records laws that, to a greater or lesser extent, make criminal
history records available to private entities (Bureau of Justice Statistics,
November 1988a). But despite tne trend, the Bureau of Justice Statistics (BJS)
maintains that criminal justice officials still enjoy some discretion regarding
noncriminal justice use of records: "[I]n many states the actual extent of
noncriminal justice access to records held at the repository is more limited
than it would appear from a reading of the state statute" (ibid).
Specific Access Legislation
Variety continues to be the watchword with respect to legislation
granting private individuals and organizations access to criminal records for
employment screening purposes. As the ABA Center on Children and the Law
found, some states permit access regarding persons applying or volunteering
for positions in which they will have supervisory or disciplinary power over a
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minor; others allow access to youth-service agencies or certain entities
providing recreational, social, educational or child safety services to children
(Davidson et al., 1991). Robert Belair, a Washington lawyer and general
counsel for SEARCH Group, has observed some general patterns in state
legislation granting noncriminal justice entities access to criminal history
records, including the "clear distinction between conviction information and
nonconviction information: state agencies demonstrate some willingness to
release the former and almost no willingness to release the latter" (BJS,
November 1988a).
In pe.mitting access to criminal history information under these
circumstances, a few states have set forth eligibility requirements that a private
entity must meet in order to be able to obtain the information. For example,
Arizona, Illinois, Iowa and Kentucky have established an authorized body to
review an entity's request and decide whether its activities fall within
statutorily authorized boundaries. Other states require volunteer organizations
seeking criminal record access to enter into agreements setting forth the access
terms, including indemnification, information security and confidentiality. For
example, Kansas has "non-disclosure agreements" and Illinois has "private
organization volunteer agreements" (Davidson et al., 1991).
Public Records Laws
During the past 15 years, states began enacting, (and others recently
began considering) versions of public records laws. In some states, these laws
are quite far-reaching. Florida, for example, permits anyone to request the
state criminal record of any other person upon payment of a fee and the
provision of certain information regarding the subject (name, sex, race, date of
birth, social security number and address). Other states are more restrictive
and may expressly require a subject's consent or effectively do so by requiring
certain information, such as fingerprints, state identification number or a
description of the specific, reportable event identified by date and agency or
court. In addition, until 1990, at least one state (Texas) had interpreted its
records law to disallow access to criminal record information. Texas' open
public records law was amended in 1990 and the Texas Attorney General
subsequently issued an opinion that an individual has a special right of access
to his/her criminal records and may authorize someone else to obtain those
records (ibid). The National Conference of Commissioners on Uniform State
Laws adopted model state legislation making conviction data available to the
public, provided that requesters supply certain important information; all
nonconviction information would be unavailable (BJS, November 1988b).
Child care and youth-serving organizations in these states may be able
to conduct criminal record checks, at least with respect to state records, by
complying with the requirements set forth in the public records laws.
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V. USE OF CRIMINAL RECORD CHECKS FOR
PRE-EMPLOYMENT AND LICENSING PURPOSES
In the past two decades, the creation of a national criminal history
information system has flourished. Although criminal history information
systems were originally designed with the sole needs of criminal justice
agencies in mind (e.g., using the records for investigation, arrest, bail setting
and sentencing purposes), today's typical "user" of criminal history
information is likely to be a noncriminal justice agency seeking to make a
more informed hiring or volunteer placement decision. This leads not only to
questions of whether criminal records are accessible to public and private
employers, but also to what extent such use is appropriate and effective in
screening out potentially abusive child care and youth-service workers.
Given the nature and intensity of state and federal legislative and
regulatory efforts regarding criminal background checks, one is inclined to
believe that use of criminal history information by public and private
employers is indeed appropriate. Whether it is highly effective in weeding out
employees/volunteers who may harm children is of great debate.
According to Davidson (1986a), "Although new pre-employment record
screening laws have become the single most common legislative response to
the out-of-home abuse problem, their immediate promised impact of 'screening
out' child molesters has been minimal." Of major concern is the quality,
relevance and likelihood of obtaining criminal history records. Many insist
that arrest and conviction records paint a limited picture of the prevalence of
the child abuse problem.9 In their work with convicted sexual offenders,
Groth and his colleagues (1982) found that offenders committed from two to
five times as many sexual assaults as appear on record; child molesters
admitted to an average of five offenses for which they were never caught.
So Why Conduct a Criminal Record Check?
Probably the two most predominant counterarguments to skeptics of
criminal record checks are that (1) identifying even one child offender may
save hundreds of children from abuse and (2) conducting criminal record
checks deters many potentially abusive individuals from applying to positions
which give them access to children. (The deterrent claim, however, presumes
that an individual has a criminal record on file waiting to be disclosed.)
Child- and youth-serving organizations may also employ criminal record
checks because the checks serve as an objective, independent source of
background information and are not contingent on an individual's willingness
to be candid. In addition, criminal record checks serve as a visible indicator
of an organization's commitment to preventing abuse and are fast becoming a
necessary protection against liability and negligence.
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Background on Criminal History Information Systems
10
Pursuant to federal legislation, the U.S. Attorney General collects and
maintains criminal records. The Attorney General is authorized to exchange
this information with state and local governments and law enforcement entities;
a responsibility the Attorney General has delegated to the Federal Bureau of
Investigation (FBI). Currently, the FBI maintains criminal record information
through (1) the FBI Identification Division, which houses the fingerprint
record repository and (2) the National Crime Information Center (NCIC),
which contains the Interstate Identification Index (III). The latter is a
telecommunications system linking federal and state files, which also interfaces
with the FBI Identification Division.
The FBI has maintained a national criminal history record repository in
the FBI Identification Division since 1924. The development of computerized
information systems did not arise until 1967, when the NCIC was established
to provide criminal justice agencies with 24-hour-a-day access to automated
files on wanted and missing persons and stolen property. This advancement
led to the implementation of an on-line Computerized Criminal History system
(CCH) in 1971, which served as a national repository of offender criminal
history files for law enforcement purposes only. CCH was phased out in the
late 1970s, due to lack of participation by the states, and replaced with the
Interstate Identification Index (III).
The III facilitates interstate and federal/state exchange of criminal
history records for both criminal and noncriminal justice purposes (e.g.,
employment and licensing) and serves as a "pointer" to refer agencies to more
complete state or federal files. When fully operational, the III will serve as a
national index to link together state repositories. Of the 20 states currently
participating in III, an average of 52 percent of the files are available. An
additional 22 states plan to participate within five years (BJS, March 1991).
Criminal records of non-participating III states are only available through a
standard FBI fingerprint check.
As of December 1989, there were over 45.6 million individual
offenders in state criminal history repositories; an increase of almost 32
percent from 1984. Over 6 million arrest fingerprints were submitted to state
repositories in 1989 alone (approximately one-fourth of which were returned as
unacceptable). At the federal level, the FBI maintains over 26.4 million
criminal records; 14.4 million of which are automated and available through
III (BJS, January 1992). In March 1991 alone, the FBI received
approximately 427,000 criminal fingerprint cards, of which over 8 percent
were returned because they were illegible and could not be classified. (This
translates to an annual rejection rate of close to 400,000 prints, many of which
are never resubmitted.) Also in that one month, the FBI received
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approximately 223,000 dispositions and processed 1.4 million III name-check
requests. Some 346,000 III fingerprint record requests came in follow-up to
the name checks (ibid).
It should be noted that the FBI generally cannot disseminate criminal
records directly to private employers, but organizations can access FBI records
through a designated state agency which serves as the authorized middle-
man." In addition, access to juvenile records is limited. A November 1989
Bureau of Justice Statistics survey reported that 75 percent of state law
enforcement agencies have policies for sealing juvenile records, 79 percent for
expunging such records. However, President Bush's March 1991 Violent
Crime Control Initiative led to the authorization of the FBI to collect records
of juvenile offenders from state agencies willing to cooperate. While states
are not required to forward juvenile records to the central repository, they
now may be encouraged to do so (Ritchie, 1993).
B. Child Offender Arrests and Convictions Are Lacking
Despite what seems like a voluminous amount of criminal history
records on file, arrest and conviction records for child offenders are often hard
to come by. The Select Committee on Children, Youth, and Families (March
1987b) asserts, "While nearly all States report involvement of Child Protective
Services with law enforcement agencies, they cannot report the rate of
indictment, prosecution and/or convictions related to child abuse and neglect,
nor are they able to report the percent of substantiated cases of abuse and
neglect which are referred to law enforcement authorities. " The Department
of Justice acknowledged that "Many [extrafamilial child sexual abusers] have
previously been arrested for violent or exploitative acts against children -
some a number of times. However, if they have not been convicted . . .
privacy laws deny their employers or potential employers access to their
records." The result, according to the Justice Department, is that "the vast
majority of arrested child sex abusers are able to go from job to job with little
fear that arrests in connection with previous employment will ever be
discovered by future employers" (U.S. Department of Justice, May 1986).
Arrests for child offenses grew faster than any other type of arrest from
1969 to 1990, yet the Justice Department has indicated that 90 percent of all
child abuse cases do not go forward to prosecution (Senate Judiciary
Committee, November 1991 and May 1989). The "funnel effect"
characteristic of other felony offenses, (i.e., at each stage of the adjudication
process the number of offenders dwindles, leaving only a few to be sentenced
to terms over one year), is also prevalent in child abuse crimes (BJS,
December 1984).
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Other studies confirm this phenomenon. Los Angeles school district
officials revealed that of the over 8,300 reported child abuse cases in 1988-89,
only 7 to 10 percent were actually prosecuted, about 3 percent ending in
convictions (Daily News, December 1990). And Finkelhor and Williams
(1988) found that of all substantiated sexual abuse cases in day care, just over
a quarter (26 percent) ended in conviction. Although the large majority of
those convicted spent time in prison (88 percent), more than half could expect
to be back on the streets before their victims finished the first grade.
When the scope is broadened to include substantiation of any type of
criminal behavior, the statistics are not much different. The Bureau of Justice
Statistics reports that about 6 percent of the people are responsible for as much
as 70 percent of the violent crimes (BJS, January 1992). The probability of
arrest for most crimes is 15 percent and when an arrest does occur, the
charges are dropped or dismissed in over half of the cases (House
Subcommittee on Civil and Constitutional Rights, October 1987). Of all
felony arrests presented by police for prosecution, 52 percent are rejected at
screening, dismissed or diverted without plea before trial, or result in an
acquittal. Fewer than 25 percent of those arrested are found guilty of the
offense for which they were arrested. In addition, the Bureau of Justice
Statistics found that the percentage of felony arrests resulting in felony
convictions is as low as 6 percent in some states (ibid).
C. Likelihood of Discovering a Person with a Criminal Record
Based on what we now know about arrests and convictions, the
pervading question then becomes: What are the chances that a criminal
background check on those working with children will reveal prior criminal
activity? For child offenders, it is slim - and this is one of the biggest
criticisms about the use of criminal record checks for screening purposes. The
case of John W. Shaver, a former day care center operator, illustrates this
problem. In 1983, the state of Hawaii revoked Mr. Shaver's day care license
after complaints of child abuse. No criminal charges were brought against
Shaver in this case; however, about a year later, Shaver pleaded guilty to a
misdemeanor count of operating another preschool from his Hawaii home
without a license. Shaver left Hawaii and two years later opened a day care
center in Florida, where he was arrested and charged with possession of child
pornography. While Florida had conducted a criminal background check on
Shaver, nothing turned up because the Hawaii case did not involve criminal
charges {Honolulu Advertiser, February 4, 1990).
In fact, the likelihood that any child abuser will have a criminal record
ranges from 1 to 15 percent, averaging around the 5 percent mark (BJS, April
1987; Davidson etal., 1991; DHHS, 1985; Finkelhor and Williams, 1988).
Even if there is a record of a sex offense, it does not always indicate if the
25
139
victim was a child or an adult. In addition, while 95 to 97 percent of day care
workers are female, 80 to 85 percent of FBI records are on males, further
limiting the probability of identifying a female offender (DHHS, 1984a).
Most statistics on criminal record "hit" rates are discouraging, often
landing below 1 percent and sometimes creeping above 5 percent. The Senate
Judiciary Committee (November 1991), however, did issue an encouraging
word: within one year, six states using criminal background checks identified
more than 6,200 individuals convicted of serious criminal offenses (including
child abuse, sex offenses and violent crimes) who were seeking jobs as child
care providers. (Readers should be aware that because the total number
screened was not indicated, the actual percentage hit rate cannot be
ascertained.) Other findings provide a more complete, although less favorable,
picture of criminal record checks. Below are several states' experiences in
conducting criminal record checks to screen out unsuitable child care and
youth-service workers:
• Out of the 1 15,333 people screened in FY '91 against the Texas Department
of Public Safety criminal histories, only 860 (.7 percent) had relevant criminal
history matches; out of 309 FBI fingerprint checks done on new Texas
residents, only 9 (3 percent) were identified as having a criminal history
(Senate Judiciary Committee, November 1991).
• Fingerprint checks on over 21,700 New York City child care workers yielded
only 170 hits, a less than 1 percent hit rate. Only 14 were for sexual offenses
and 4 for endangering the welfare of a child; almost half of those with records
were custodial staff (Gordon, 1986-87).
• Only 2 of 3,000 people screened in Florida (.07 percent) were identified as
having criminal histories, only one of these for sex crimes (DHHS, 1985).
• A statewide fingerprint check of 570 day care operators/employees in Georgia
resulted in only a single "hit" (.2 percent); name checks of 2,400 identified
only 2 others (.08 percent) (DHHS, 1985).
• Out of 2,000 checks on foster and adoptive parents in Connecticut, less than
75 had a criminal record, a rate of about 4 percent (Davidson et al., 1991).
• Of the 9,000 child care providers checked in Massachusetts during the first
half of 1990, 46 were disqualified and 25 were approved with convictions;
this translates into .8 percent with any type of conviction, but only .5 percent
that were deemed relevant (Davidson et al., 1991).
• In New Hampshire's first year of criminal background checks on all day care
providers, employees and adult household members, only 8 applications out of
about 250 processed (3.2 percent) were denied {Boston Globe, November 25,
1984).
• In 1987, Broward County's police department processed criminal record
checks for 5,315 potential school employees and denied from 4 to 6 percent of
applicants due to felony convictions, the majority of which were for drug
offenses (Zakariya, 1988).
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140
D. The Growing Use of Criminal Records for Employment and
Licensing Purposes
The controversy surrounding the use of criminal records for
employment and licensing purposes has escalated with the growing number of
noncriminal justice agencies adopting this practice. In some states, the number
of requests from noncriminal justice agencies for employment and licensing
purposes has exceeded that from criminal justice agencies. The Office of
Technology Assessment (1982) found that 53 percent of all FBI records
requests were made by noncriminal justice users, with the Department of
Defense and the Office of Personnel Management accounting for about 30
percent and state and local agencies for the other 23 percent. As of 1983,
over 3.7 million criminal records had been reviewed for employment purposes
(Gordon, 1986-87).
The range of employers and licensing agencies that can access state and
federal records is growing rapidly; there are now over 64,000 authorized users
of the FBI system (BJS, March 1991). New York allows or requires
government agencies, schools, day care programs, museums, hospitals, banks
and law enforcement agencies to screen criminal records for employment
purposes — and nonconviction data may be disseminated. California authorizes
screening for auto mechanics, barbers, cosmetologists, optometrists, liquor
store owners, pest control employees, real estate brokers and notary publics,
among others. Youth-service organizations in California can also access
records.
A report examining the effects of Florida's open records policy found
that some 760 agencies and organizations that can search the state records -
including health care, youth programs, foster parent and adoption agencies,
schools, and substance abuse programs — filed approximately 167,000 criminal
record requests in fiscal year 1988. This was an increase of 29 and 57 percent
over fiscal years 1987 and 1986 respectively. Requests for the first three
months of fiscal year 1989 represented an almost 21 percent rise over the same
period in 1988; an increase attributed in part to the prevalence of drug and
child abuse offenses and the risk of liability (SEARCH Group, Inc., March
1990).
As indicated in Figure B, Hayes and her colleagues (1990) found that
27 of the states (53 percent) conduct criminal record checks on family day
care providers; 29 states and the District of Columbia (59 percent) conduct
criminal record checks on center care providers; and about half of the states
(49 percent) conduct criminal record checks for both family day care and
center care providers. (Figure B also exhibits the number of states conducting
child abuse registry checks for family and center day care workers. Screening
against child abuse registry checks is discussed in Section VI.)
27
141
Figure B: State Regulations of Family & Center Day Care, Caregiver Screening
33
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53*
26
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23
20
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Cantor Day Car* Paml ly Day Card Farm ly & C«nt«r Cara
Crim record etc RO^ Child abuse reo ctV//7A Both, chects
Source: Hayes cl al.. 1990
In the public school system, Titus and DeFrances (1989) surveyed over
1,100 public schools and found that 58 percent conducted criminal record
checks, most commonly by name and social security number; fingerprints and
aliases were used half as often. Local, state and federal law enforcement were
the most common sources of information, while courts and sex offender or
child abuse registries were seldom used. The authors also found that of those
schools conducting criminal record checks, all do checks on applicants for
permanent employment; most on temporary, part-time and/or substitutes; and
less than half on volunteers or employees of subcontractors. And in a study of
screening procedures used by Big Brothers/Big Sisters of America, Carrilio
(1987) found that 79 percent of the agencies use local arrest and conviction
records; 67 percent use state records; and 25 percent request federal records.
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142
E. Criminal History Information and Data Quality Issues
Cause for Concern
Completeness of Records and Disposition Reporting
A fundamental and often-cited deficiency of criminal history records
concerns disposition data. Two-thirds of the states report that they sometimes
receive dispositions that can't be linked to arrest information; on average,
about 18 percent of dispositions can't be linked to existing records. In
addition, about 30 percent of the states have backlogs in entering dispositions
into the database (BJS, March 1991). As of mid-June 1991, the FBI had its
own backlog of over 3 million criminal records waiting to be updated and
500,000 new files that had yet to be entered - a problem requiring $12 million
to fix (BJS, January 1992).
At a 1991 conference to discuss improving the quality of criminal
history records, then-Attorney General Thornburgh chided the incompleteness
of criminal history records, noting that there is only a two in three chance of
seeing any criminal record when a name (of someone who does in fact have a
criminal record) is entered. This is due in part to the fact that over 8 million
records are not computerized and 40 to 60 percent of the over 24 million
names in the FBI files do not have a disposition (BJS, January 1992).
Differences exist between states not only in the scope of disposition
reporting to criminal history repositories, but also on whether it is mandated.
A SEARCH Group report on the interstate exchange of criminal history
records concluded that there are disadvantages to relying on the laws and
policy of either the requesting or providing state agency and urged the
development of national standards agreed to by all participating states
(SEARCH Group, May 1981). According to a January 1992 Bureau of Justice
Statistics report:
32 states and the District of Columbia require that decisions not to
prosecute be reported to the repository;
41 states mandate reporting of felony trial court dispositions;
36 states require reporting of state prison admission and release
information on felonies;
23 states require reporting of local correctional facilities admission and
release information on felonies;
30 states require parole data and 30 require probation data to be
reported; and
Only 24 states require that the arresting agency report a decision not
to charge the person.
143
The Bureau of Justice Statistics, in its 1985 report on the data quality
of criminal history records, found that "in more than half of the states,
repositories do not have authority to compel agencies to report arrests or
dispositions" (BJS, October 1985b). Although 19 states legally require
fingerprints of those brought up on felony charges be submitted to the
repository, 10 states report that fingerprints are actually obtained and
submitted in 10 percent or less of the applicable cases; the remaining 9 states
estimate that about half of cases are submitted (BJS, March 1991). Most
studies on disposition reporting deal with state systems exclusively, leaving
little knowledge about reporting rates in local criminal history record systems
(op cit). However, a 1982 Office of Technology Assessment study did find
that when FBI files were compared with local source data, 20 percent did not
agree.
Timeliness of Criminal History Information - Both in Receiving Records and
Processing Requests
Many noncriminal justice agencies conducting criminal record checks
complain about the lengthy turnaround-time it takes to receive results. State
government agencies requesting information from the FBI reported an
estimated processing time of 6 to 8 weeks. Turnaround-time for state
fingerprint checks ranged from several days to 6 weeks, while most state name
checks took no more than 15 days. Youth-serving agencies, however,
reported record processing delays "of many months." Limited funding, lack
of automation, and non-readability of fingerprints were all cited as contributing
to delays (Davidson et al., 1991). Timeliness is especially problematic for
child- and youth-serving organizations given the high turnover rate (sometimes
reaching 50 percent) among some child care workers. This constant need for
replacement staff makes a wait of several weeks, let alone several months,
quite burdensome. And provisional hiring, i.e. permitting an
employee/volunteer to work pending the check seems to at least partially
defeat the purpose of the checks - to prevent access to children by potentially
abusive persons.
On the provider end, timeliness is also a problem for state criminal
history repositories both in terms of receiving and entering information from
various law enforcement sources. According to a January 1992 Bureau of
Justice Statistics report, 9 states report backlogs in entering arrests and 13
states report backlogs for entering dispositions into the database. The time
lapse between arrest and receipt of arrest data by repository ranges from 1 to
42 days; disposition reporting ranges from 1 day to 1 year (for one state); and
correctional facility admission information is reported in 1 to 90 days.
Additional BJS findings (March 1991) reveal that the average number of days
between receipt of information and entry into the master name index and the
criminal history database is 29 and the average number of days from final trial
30
144
court disposition and entry into the criminal history database is 79 (ranging
from less than 1 day to 952 days).
Processing Fees
At the writing of this report, the FBI charged employers and licensing
agencies $23.00 to conduct a national fingerprint check; $21.00 of this covers
the FBI's outlays and $2.00 goes to the states to defray handling costs.
Federal agencies, such as the Department of Defense and the Office of
Personnel Management, enjoy a reduced rate of $17.00. Individuals wishing
to get a copy of their own criminal history records under the Freedom of
Information Act also pay $17.00, although the FBI strongly asserts that
records obtained under the FOIA cannot be used for employment purposes.
Almost three-fourths of the states and the District of Columbia will do
a criminal background check by name, charging anywhere from no fee to
$25.00; fees for the 13 states that do a fingerprint check range from $3.00 to
$27.00. New York will not process a criminal background check unless it has
an authorized agreement with the requesting agency.12
Accuracy of Criminal History Information
Complaints regarding completeness and timeliness are joined by
concerns about the accuracy of individual criminal histories. A national study
of police arrest statistics from 1980 to 1982 showed that "arrest statistics are
not comparable across police departments, because there is widespread
violation of the rules and procedures established by the FBI for compiling
arrest statistics" {Police Foundation Reports, 1984). This becomes
problematic since, as Gordon (1986-87) claims, inaccurate criminal records
have more impact because they now "travel farther, are seen by more people,
are copied and recopied, and have more uses."
According to the BJS November 1988 report, Public Access to Criminal
History Record Information, release of information may be unfairly damaging
to an applicant in circumstances where a record: (1) relates to a different
person; (2) is inaccurate or incomplete; (3) is accurate and complete, but it
relates to a conviction or arrest which is unconstitutional or otherwise
improper; and (4) is accurate and complete, but "old" and no longer reflective
of person's character. These circumstances may be more prevalent than
anticipated: A national survey revealed that about 20 to 35 percent of criminal
history records at the state and local levels are materially inaccurate or
ambiguous (BJS, October 1985b). And Gordon (1986-87) states that each day
at least 12,000 inaccurate or invalid reports on wanted persons alone are sent
by state and local law enforcement agencies to NCIC; a mistake often
requiring a court order to rectify.
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Barriers to Obtaining Quality Information
Part of the problem in obtaining quality information has been a lack of
recognition of the importance of criminal history data. Most criminal justice
agencies, including the FBI, "generally have viewed their primary information
mission as . . . policing the information, and not as providing information to
people in order to drive decisionmaking" (BJS, January 1992). Obstacles to
receiving suitable information identified at the state level include: poor internal
written procedures, poor validation procedures, failure to submit
arrest/fingerprint cards and/or dispositions, poor documentation of original
reports, and poor hit confirmation procedures (House Subcommittee on Civil
and Constitutional Rights, July 1986).
The push for improved data quality is not a new concept; as of 1986,
49 states had adopted data quality legislation. Despite these efforts,
"significant and unacceptable data quality problems remain" at federal, state
and local levels and improvements have been "uneven and ultimately
unacceptable" (ibid). The January 1992 BJS report, National Conference on
Improving the Quality of Criminal History Records, identified the following
factors as inhibiting satisfactory data quality:
(1) absence of clear correctional philosophy, which leads to questions of what
data to collect, how it should be used and what level of quality is acceptable;
(2) proliferation of correctional programs which result in information being left
behind when an offender moves from one program to another;
(3) lack of uniform definitions in correctional terminology from one jurisdiction
to another;
(4) failure to understand information systems in the development of effective
crime control; and
(5) increased and perhaps excessive demand of accountability, leading to a
reliance on quantitative versus more appropriate qualitative goals.
Strategies for Improving Data Quality
As discussed, the fact that criminal records are being made increasingly
available to noncriminal justice agencies for licensing and employment
purposes raises serious concerns about quality of the information provided.
Compounding the problem is the fact that our criminal justice system is
incredibly fragmented; there are over 16,000 city, county and state law
enforcement agencies (Nemecek, 1990). "The mobility of our society, the
maze of procedures and the sheer number of offices involved have made a
systematic method of access nearly impossible" (Long, 1992). This
fragmentation of the criminal justice system affects not only basic operations,
but the willingness and ability to transfer information.
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The Bureau of Justice Statistics (October 1985b) outlined several broad
improvement strategies, the most important of which included prioritization of
the data quality issue; improving relationships between repositories and the
courts; increasing automation; and obtaining adequate funding levels. Further,
BJS recommended examining the issues from the user's perspective, not just
the data manager's. An April 1989 follow-up report specified additional
improvement measures:
• Conduct periodic baseline audits to evaluate data quality procedures and assess
completeness and accuracy of records.
• Develop uniform documents, forms, offense codes and reporting procedures to
improve communication and cooperation.
• Develop a single, system-wide tracking/case numbering system to link
reported data to the appropriate individual and case cycle; this would include
ability to track by specific charges (e.g., child abuse).
• Institute laws requiring mandatory reporting by all states to central
repositories and specify penalties for noncompliance.
• Provide standardized training, both at entry level and on continuing basis, for
data entry and documenting personnel.
In response to the uneasiness over less-than-optimal data quality, the
Crime Control Act of 1990 required states to set aside at least 5 percent of
their block grant funds for the improvement of criminal justice records (e.g.,
completion of records, full automation, reporting to the FBI). In addition, the
Bureau of Justice Statistics began administering a 3-year, $27 million Criminal
History Record Improvement Program (CHRI) to increase states' disposition
reporting and flagging of felony records in the database (BJS, January 1992).
As of February 14, 1992, over $16.2 million CHRI funds had been awarded
for state activities that include:
► Alaska processing a backlog of 60,000 criminal history records
*■ Arizona clearing a backlog of 95,000 dispositions
► Arkansas processing its backlog of over 70,000 arrests made within the last 5
years that do not contain dispositions
► Georgia eliminating a backlog of 348.000 fingerprint cards and disposition
reports
► Maryland developing a "live scan" booking system to help with arrest
processing
► Oregon reducing a disposition backlog of 32,000
*■ Tennessee automating to clear a 5-year backlog of dispositions
*■ Wyoming automating 7,800 manual records
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147
Point-of-Sale Systems for Licensed Gun Dealers: A Useful Model?
Improving the quality of criminal history information and developing
more effective computer systems is important to many states, if not for the
purpose of screening out child offenders, then for attaining greater gun control
and reducing violent crime. Several states have instituted strategies to achieve
the latter. Over 40 percent of the states (20) currently conduct criminal record
checks of their state repositories in connection with the sale of firearms; two
of these states also check the FBI files and 10 also screen against the III (BJS,
March 1991). These point-of-sale systems may serve as models in developing
a type of "point-of-employment" system that child- and youth-serving
organizations can access.
The Bureau of Justice, Statistics (January 1992) explains that in
Delaware, Florida and Virginia, point-of-sale systems allow licensed gun
dealers to contact the state police through a toll-free number to instantaneously
review a potential buyer's criminal history records and obtain approval or
rejection for the gun sale. All three states offer this information free of charge
to licensed dealers, (Delaware estimates it would have to charge only $8.00
per transaction to break even), and the average time for confirmation is less
than 10 minutes. During Delaware's first 5 months of the program, over
4,680 calls were received from 350 gun dealers; about 9 percent of sale
inquiries were disapproved. During just 4 months in 1991, Florida received
approximately 74,000 inquiries and denied about 4 percent. (For records
lacking a disposition, Florida has 24 working hours to obtain a disposition or
the sale is automatically approved.) In the first 18 months of Virginia's
program, which serves over 4,000 firearms dealers, some 90,655 transactions
were processed, about 2 percent of which were rejected. Virginia's system
does both state and national checks for the dealers and it's biggest reported
problem in implementing the system has been accessing out-of-state records
and interpreting the different methods of reporting and disposition information.
Virginia's first-year costs for the program were just over $310,000. The fact
that licensed gun dealers may enjoy a somewhat higher "hit rate" for point-of-
sale inquiries than child- and youth-serving organizations which conduct
criminal record checks may be due in part to differences between child care
and youth-service workers and gun-buying clientele.
F. Disadvantages and Criticisms of Criminal Record Checks
Given the continued fervor in trying to extend the use of criminal
record checks for screening purposes, the U.S. Advisory Board on Child
Abuse and Neglect voiced concern over whether a major federal initiative
might result "in new layers of bureaucracy and new reams of paperwork"
rather than increase the level of child protection (Select Committee on
Children, Youth and Families, September 1991). Others have expressed
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complaints about the absence of uniform regulations and centralization of
control regarding criminal records, which could wreak havoc for organizations
requesting out-of-state records.
In addition to the managerial headaches that can accompany criminal
background checks, adversaries fear that such screening may foster
organizational complacency and overconfidence in the selection of employees
and volunteers. Critics worry that using criminal record checks may lead to a
false sense of security and organizations will be less apt to subject applicants
to supplemental, and perhaps more elucidating screening procedures. If
criminal record checks identify offenders at all, it is likely they will capture
only one type of offender. This is problematic because, as discussed in the
beginning of this report, the offender population is a diverse one, complete
with unique offender subgroups exhibiting different character traits.
Add to all of this, distress over the amount of financial and human
resources needed to conduct criminal record checks, and what emerges is a
difficult struggle between the need to protect children and the desire to keep an
organization functional and within budgetary constraints.
Administrative and Procedural Problems
Conducting criminal record checks has been known to consume
precious personnel time and sometimes throws a kink into otherwise routine
staff selection and hiring procedures. While one-third of public schools
reported experiencing no problems in using criminal record checks for
prospective workers some difficulties did arise, including hiring delays and
unsuitable applicants not identified (see Figure C). Other comments by public
school survey respondents included a preference for dialogue over use of
mailed written forms to facilitate more open-ended, exploratory discussions
about an applicant's performance, character traits and suitability. In
particular, the schools liked indirect questions about why the applicant left
his/her last job rather than direct questions about criminal activity and related
behavior. Ditter (1986) also noted that in screening for child abuse among
staff, many organizations opt for more subtle, less offensive approaches.
Fairfax County and Arlington school officials uttered dissatisfaction
with federal checks because they applied to a limited number of offenses and
missed records of fraud, drug charges or illegal gun possession (Fairfax
Journal, January 8, 1990). More recently, Fairfax County schools were
forced to relax their fingerprint requirements for substitute teachers due to the
10- week turnaround time and high turnover rate in the substitute teacher pool
(The Washington Post, October 22, 1992). Louisiana schools and day care
centers have also complained that the police are "too slow in processing
criminal history reports," taking up to 18 months to complete the reports and
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149
thereby providing a window of opportunity for individuals to gain access to
children. "The bottom line is that offenders are getting a 15- to 18-month shot
at somebody's child," according to the state police's supervisor of criminal and
traffic records. The main problem, police say, is outdated processing
equipment (Times -Picayune, March 11, 1991).
Figure C: Problems Resulting From Criminal Record Checks
As Reported By Public Schools
No proo lams
info not adoo/ c f m« t y Additional costs
Creates' delays Unsuitable aooiicants not iaa
Source: Titus and DeFranccs, 1989
Even London's Department of Social Services has been plagu°d by
administrative problems in conducting criminal record checks. In light of
growing public concern about the risks to children of abuse from employees,
London introduced a criminal background check system in 1986. However,
disputes with the police over who would be liable if the information provided
was incorrect forced some authorities to abandon the practice. Due to the
large number of employees involved, including minicab drivers who transport
children, the system became bogged down and delays of up to eight weeks
forced job applicants to look elsewhere for employment (New Society, July 31,
1987).
One additional administrative glitch is the need for staff trained in how
to actually fingerprint an applicant. This may seem like a minor detail, but
sending a set of illegible fingerprints to the FBI or state criminal history
36
150
repository and having to repeat the process wastes valuable money and time.
Illinois' licensing agency for child-related activities reported that in 1990,
almost half of the fingerprints obtained for screening were unclassifiable, some
of which could not be read and had to be resubmitted (Davidson et al., 1991).
Need for Interagency Coordination
Lack of coordination and cooperation among law enforcement, state
regulatory/ licensing bodies and community agencies further complicates
matters. For example, when a child fatality is subsequently investigated by
police, child protective services may not be involved; therefore, if a person
kills a child under circumstances that do not result in prosecution or
conviction, the state central child abuse registry does not reflect the matter.
This dearth of communication is not limited to child welfare services:
an analysis of teacher revocation notices received from 49 states by the Florida
Department of Education for a five-year period found that Florida officials
were not informed about as many as 35 percent of the certificates revoked by
other states (The News Chief, September 25, 1984). Factors hindering
interagency cooperation include the large number of public and private
agencies involved; diversity in licensing and regulatory standards; the complex
nature of extrafamilial abuse; and the absence of a uniform definition and
consensus on what constitutes abuse in out-of-home settings (Nunno and Motz,
1988).
Financial Concerns
In these tight economic times, it is not surprising that a significant
amount of scrutiny would center on the cost-effectiveness and cost-benefit of
criminal record checks. In Pennsylvania it was determined that the state
would have to spend $6 million on background checks, pursuant to the
DeConcini-Specter Amendment, to gain an additional training allocation of
$633,000 (Special Reports, April 14, 1986). The U.S. Department of Health
and Human Services (1985) calculated that to screen 1 million employees as
per the amendment at $25.00 for both state and federal fingerprint checks (the
going price almost a decade ago) would cost $25 million. DHHS assumed that
if 5 percent turned up with a criminal record (50,000) and 2 percent of those
were child sexual abusers (1,000), then the cost of finding these 1,000
potential sexual abusers amounted to $250,000 per abuser. This lofty price tag
led Finkelhor and Williams (1988) to conclude that police records checks "are
expensive and inefficient prevention techniques, identifying only a small
fraction of potential abusers at prohibitive cost."
The Fairfax County School system spent an estimated $140,000 in 1990
to fingerprint more than 4,000 job applicants ($35.00 per applicant.) Using an
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estimated hit rate of 5 percent, 200 potentially abusive individuals would be
screened out to the tune of $700.00 per offender. School officials feel that
state and federal checks are worth the money and necessary since so many
applicants are new residents coming from out-of-state {Fairfax Journal,
January 8, 1990). Hawaii's Department of Education estimated that while
state background checks are free, conducting FBI fingerprint checks on an
estimated 6,000 new public school employees would run them around
$138,000 a year, not including administrative costs. The state's education
department employs approximately 30,000 full- and part-timers, a potential
$690,000 expense {Honolulu Advertiser, November 13, 1991).
In examining the issue of cost in greater detail, it is apparent that all of
the information on cost has not yet been fully considered. For example, using
the DHHS scenario, another way to look at the total cost of criminal history
record checks is to consider the cost per perpetrator identified. If we use very
liberal estimates and assume that the initial 50,000 who are identified have
some type of criminal record (not solely a sex offense) that makes them
unsuitable for the position, then the cost per offender drops dramatically to
$500.00. Still another option might be to ascertain how much criminal record
checks cost from a "per child saved from abuse" standpoint. If we speculate
that each offender may abuse from 7 to 100 children (please refer to page 11),
then the cost for each child saved from abuse from the cohort of offenders
identified becomes just over $70.00 or as little as $5.00. But this assumes that
preventing one offender from being hired for that one job will stop him or her
from abusing the children in other settings.
To carry this thought further, one would have to consider how costs
will accumulate over time; i.e., this cost estimate is really a "per child saved
from abuse" by only one offender in a particular employment/volunteer
setting. A child may be exposed to a number of people at any given point in
time (e.g., teacher, coach, priest, doctor and others), and during childhood the
number of adult-child contacts is virtually endless. To calculate true costs,
one would have io add up the expense of conducting criminal history record
checks on all of the individuals that may present some risk to a child (e.g.,
school administrators, teachers and support staff, day care providers and their
adult household family members who may help out, community recreational
center employees and volunteers, youth development workers, health care
direct service and support staff).
Table 4 provides a financial profile of the estimated costs associated
with conducting criminal record checks on public school employees in 12
states. These examples, while only representing one of the many settings in
which adults come into contact with children and youth, are offered in part
because schools are a place where exposure is greatest. In addition, estimates
on the number of public school employees (instructional and non-instructional
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staff) are readily available, whereas a breakdown on the number of
recreational and youth development workers, as well as other professions, is
not. Readers should note that "cost per child saved" (as portrayed in the
chart) only takes into account the cost of saving a child from abuse by one
public school employee while that child is in the school setting. In addition,
the cost of federal and state checks includes the FBI's $23.00 charge and a
given state's own fee, but does not include other administrative costs which
may be prohibitively expensive for some agencies. (Administrative costs are
not included because no reliable estimates were gleaned from the literature.)
39
153
o
o
o
o
o
o
o
o
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154
Contentions that Criminal Record Checks are Unfair and an Invasion of
Privacy
Criticism of criminal background checks, however, extends beyond the
financial, administrative and effectiveness arenas to encompass issues of
privacy and fairness. While some individuals hold that people should be given
a second chance and an opportunity to start anew, others argue that the
community has the right to protect itself; not only must individuals be held
accountable for their behavior, but organizations must be held responsible for
their employees' character.
Civil and constitutional rights advocates reject the idea that child- and
youth-serving organizations should have increased access to individuals'
criminal history records. They object, in part, on the grounds that employers
do not know how to properly decipher and use criminal history information.
This alleged inability to translate criminal records, advocates argue, paves the
way for employer misinterpretation and discrimination. Secondly, opponents
of criminal background checks argue that increased access will have an
adverse effect on the poor, blacks and other minorities because such groups
account for a disproportionate percentage of criminal offenders. Testimony
before the House Judiciary Committee indicated that blacks are arrested four
times more frequently than whites, even though only half of those arrests ever
end in conviction. Additional testimony revealed that one-third of the FBI's
criminal history files are on blacks and the percentage of blacks with arrest
records ranges from 30 percent nationwide to over 50 percent in certain cities
such as Philadelphia (Subcommittee on Civil and Constitutional Rights,
October 1987).
In sum, it has been argued that police checks are not effective as a
screening method because they are incomplete and do not provide enough
detail for certain offenses; contain no records on juvenile offenders unless tried
as an adult; are expensive and time consuming; have an adverse effect on
minorities; are invasive and discourage the recruitment of quality
employees/volunteers; and can increase an agency's liability if the agency fails
to use the police check capability. These arguments need to be weighed and,
within the privacy and due process parameters set by the Constitution,
balanced against the pivotal consequences of having repeat offenders slip
through the cracks and harm more children. The following section reviews the
legal literature discussing how federal and state law have resolved some of
these issues.
41
155
G. Legal Issues Arising from the Use of Criminal History
Record Checks
The literature reveals that using criminal background checks to screen
out unsuitable employees and volunteers has raised a number of legal issues.
Specifically, the literature discusses: (1) whether the disclosure of criminal
history records, including arrest and/or conviction information, implicates
constitutional privacy or due process interests; (2) whether the disclosure or
use of criminal records in screening persons who work with children violates
statutory or tort-based privacy considerations; (3) whether the use of criminal
records as a screening tool violates principles of fair employment practices,
including those discrimination prohibitions set forth in Title VII of the 1964
Civil Rights Act; (4) whether an employer can be held liable for harm caused
by an employee or volunteer with a criminal record; and (5) whether a state
agency or employer can be held liable for harm caused by the use of
inaccurate criminal history information.13
Constitutional Issues: Privacy and Due Process Considerations
The constitutional challenges regarding disclosure of criminal
background information have focused on privacy interests and due process of
the law. The 1976 Supreme Court case of Paul v. Davis, 424 U.S. 693
(1976) and its progeny, however, effectively eliminated most challenges based
on federal constitutional privacy interests.14 In Paul, police officials
circulated a flier to local merchants, entitled "ACTIVE SHOPLIFTERS,"
which included the plaintiffs picture. The plaintiff had been arrested for
shoplifting some 18 months earlier and never convicted, although the charges
were still pending. As Davidson and his colleagues (1991) point out, the Paul
court held that this action was not a violation of the plaintiffs constitutional
right to privacy and noted that the privacy claim was "far afield" from the line
of past Supreme Court privacy decisions involving "marriage, procreation,
contraception, family relationships and child rearing and education." And
several other authors have suggested that the "public record" nature of the
arrest information in Paul was a critical factor limiting the application of any
constitutional right to privacy.15
Subsequent lower court decisions have generally given short shrift to
constitutional challenges to disclosure of criminal convictions and pending
criminal charges based on the right of privacy. Some cases, however, suggest
that privacy considerations may still be applicable with respect to acquittals,
records of old arrests no longer pending, records of arrests made without
probable cause, or records otherwise defective (BJS, November 1988a). Thus,
at least with respect to disclosure of conviction and current, pending arrest
information, the legal literature indicates that a federal constitutional right to
privacy is not implicated. Protection of privacy interests has largely been
42
156
left to those state constitutions that provide a right to privacy, the common law
action of invasion of privacy, and statutory limitations on criminal records
based on public policy concerns for privacy.16
Several state constitutions, including California, expressly provide a
right to privacy. The extent to which the state constitutions explicitly or
implicitly protect against the disclosure of criminal history information in
screening persons who work with children is unclear from the literature
reviewed. In Florida, persons named in public records (such as criminal arrest
and conviction records) have not been found to have a state right to privacy
that is violated by the release of public records (Rivas, 1992).
Due process considerations are at issue in the use of criminal
background checks because a person's interest in earning a living has been
included in the concept of "liberty" under the Constitution's due process
clause. However, Davidson et al. (1991) note that in DeVeau v. Braisted, 363
U.S. 144 (1960), the court held that employment and licensing restrictions do
not violate the due process clause if they are "reasonable means for achieving
a legitimate state aim." Since protecting children from abuse outside the home
has been found to be a legitimate state aim,17 the inquiry is whether the use
of criminal checks is a reasonable means to protect children. The legal
literature analyzing this issue is limited. It is clear, however, that
reasonableness under the due process clause requires the inclusion of certain
procedural protections. The literature describes some of the procedural
safeguards that have been proposed in utilizing criminal record checks.
In a memorandum regarding the DeConcini-Specter Amendment, Sen.
Arlen Specter recommended that individuals disqualified from employment as
a result of their criminal history be notified of the reasons for the
disqualification (including information on the procedures to challenge or
correct inaccurate information) and given an opportunity to be heard before the
state agency (Beaty and Woolley, 1985).
The SEARCH Group's 1988 report Standards for the Security and
Privacy of Criminal History Record Information, which sets forth national
standards for handling criminal justice information, is also instructive.
Standard 13.5 recommends that most criminal history record information be
publicly available, except for certain nonconviction information, (including
arrests over one year with no charges actively pending, nolle prosses, and
acquittals and dismissals), which is to be disclosed for "private noncriminal
justice purposes as authorized by state statute." Further, this nonconviction
information is to be available under a written agreement ensuring that "the
information is used only for the purpose for which it was disseminated, is not
redisseminated, and is maintained in a manner to assure the security of the
information and the protection of the privacy interests of the record subjects."
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157
Statutory and Common Law Privacy Claims
Public policy concerns with privacy (and due process) form the basis
for statutory provisions governing the maintenance and dissemination of
criminal record information. A number of publications by the Bureau of
Justice Statistics and the SEARCH Group, Inc. discuss the statutory and
regulatory provisions governing criminal records.18 These provisions include
limitations on access to criminal record information. As previously noted,
under federal law a private entity seeking access to FBI records for
employment purposes must be authorized to do so by state law and through a
state intermediary. In addition, the Privacy Act of 1974, 5 U.S.C. §552a,
provides a number of safeguards designed to protect privacy interests. The
Act includes procedures for individuals to access and amend federal agency
files with information about themselves and permits certain civil suits if the
federal agency does not correct inaccurate data (Firehock, 1992). However,
the Act's authorization for law enforcement agencies to exempt themselves
from certain duties under the Act has limited its reach. The exemption for law
enforcement-related records has been interpreted to include recompilations of
such records for non-law enforcement purposes (ibid). Thus, the Act may not
be applicable to criminal records used for the screening of persons working
with children.
The common law tort action, invasion of privacy, may also be the basis
for liability resulting from the use of inaccurate data. As initially analyzed by
William Prosser (1960), invasion of privacy includes four distinct types of
torts, including "public disclosure of private facts." For the most part, the
cases involving the release of criminal records have focused on this type of
tort. Drawing on the analysis in Paul v. Davis regarding the constitutionally-
based right of privacy, some courts have found that the tort of invasion of
privacy does not prevent the disclosure of criminal justice records because
arrests and convictions are public facts. Other courts have balanced the
individual's privacy interests against the public's interest in having the records
disclosed (SEARCH Group, 1984; Turkington, 1990).
Employment Law Issues
Employers in a number of business areas are increasingly using detailed
computer databases to obtain information about prospective employees'
criminal, credit or workers compensation histories. Some individuals have
claimed that the practice of using criminal history information is
discriminatory under Title VII of the Civil Rights Act of 1964, and have
challenged hiring and firing decisions based on criminal records because they
have a disproportionate impact on the employment opportunities of minorities.
In certain employment contexts not involving children, these challenges have
been successful. (Frank, 1992; Frierson, 1988a) However, if an employer
44
158
can show that criminal background checks are a "business necessity," checking
arrest records or other criminal information will not be considered unlawful
discrimination within the meaning of Title VII. In deciding whether a practice
is a business necessity, courts make a determination as to whether the practice
is "related to job performance" [Davidson et al., 1991 citing Griggs v. Duke
Power Co., 401 U.S. 424 (1971)].
The literature to date does not specify whether any court has expressly
ruled that the use of criminal information to screen people who work with
children does not violate Title VII.19 However, as the ABA Center on
Children and the Law has noted, "[i]n light of the recent increase in out-of-
home child abuse, child-serving organizations ... are very likely to have what
courts would consider a 'business necessity' to check arrest records of
prospective and current employees" (Davidson et al., 1991). Others argue that
only conviction information should be used, asserting that the use of arrests
without convictions violates Title VII.20
Moreover, in deciding the effect of an existing conviction (or arrest, if
such information is to be used), courts have determined that "any test used [to
hire or retain employees] must measure the person for the job and not the
person in the abstract." Thus, a criminal record generally may not absolutely
bar employment, but may be a consideration in the decision to hire or retain
an employee (Davidson et al., 1991). The practice of rejecting all those with
criminal convictions was struck down in a case that did not involve care,
service or treatment of children, with the court noting that such practices will
not be upheld unless there is a specific business or statutory' justification
(Schreiber, 1980). Again, whether child-serving organizations have a business
justification for rejecting an applicant simply based on a criminal record, is
unclear from the legal literature reviewed.
The states also have equal employment opportunity statutes similar to
the federal Title VII. Consequently, a prospective employee may challenge a
hiring decision based on state rather than federal fair employment law
(Murray, 1986). Further, in some states, requesting arrest information on a
job application generally violates the state equal employment opportunity laws,
although positions involving work with children may be excepted (Hahn,
1991).
Negligent Hiring and Negligent Supervision
Analysis of negligent hiring and negligent supervision historically
stemmed from a "respondeat superior" theory under which acts falling outside
the scope of employment do not subject an employer to liability. Since
criminal acts tend to fall outside the scope of employment, employers
45
159
generally have not been held liable for child abuse perpetrated by their
employees under a respondeat superior theory.
In recent years, however, challenges utilizing "negligent hire" or
"negligent supervision" theories have met with some success. An employer
customarily has a duty to use "reasonable care" in hiring and retaining
employees who are competent and fit for their positions. In deciding whether
the exercise of reasonable care in hiring may include reviewing a prospective
hire's criminal background, a court will look at all the circumstances
surrounding the hiring, including whether an employee is being hired for a
sensitive occupation (Davidson et al., 1991).
The legal literature does not indicate whether the courts have expressly
decided whether the sensitive nature of work conducted by child care and
youth-serving organizations requires criminal record checks of employees.
Liability is often predicated on the broader finding that an employer hired a
person without an adequate background investigation which would have
indicated that the plaintiff child was at risk (Bates, July 1990). Davidson and
colleagues (1991) discuss Infant C. v. Boy Scouts of America, 391 S.E. 2d 322
(Va. 1990), a case in which the local Boy Scouts branch was found liable
when a volunteer scoutmaster with a criminal record for sexually assaulting
scouts in another state allegedly molested the child plaintiff. The court
dismissed the claims against the national Boy Scouts organization based on a
finding that the national organization did not participate in selecting or
retaining the scoutmaster.
Under a "negligent supervision" theory, an employer may be liable for
harm that could have been prevented by proper supervision of the employee or
volunteer. Fossey (1986) refers to one case, Collins v. School Board of
Broward County, All So. 2d 560 (Fla. Ct. App. 1985), in which the court
held that a school district could be liable for a sexual assault on a student in an
improperly supervised shop class. Although that particular case involved a
student assaulting a student, the court's reasoning — that the assault could have
been prevented by proper supervision — is equally applicable to employee or
volunteer assaults. However, the fact that an abusive act takes place while a
child is in an employer's care, does not necessarily result in liability. In Peck
v. Siau, 827 P.2d 1108 (Wash. Ct. App. 1992), a high school librarian and a
student had sexual contact and the school district was sued based on negligent
hiring and supervision. The court did not find the school district liable, noting
the absence of actual or imputed knowledge that the librarian would endanger
students. And the teacher to whom allegations of the librarian's misconduct
were made was also not found liable since the teacher had no supervisory
responsibilities (ABA Juvenile & Child Welfare Law Reporter, 1992, 11:84).
46
160
Lawsuits have also been brought in federal court by persons seeking
damages against state officials for harms to children under a variety of
circumstances (Guggenheim, 199121). The Civil Rights Act, 42 U.S.C.
section 1983 permits suits against officials acting under color of state law who
have deprived persons of federal rights. The circumstances under which
section 1983 can successfully be used to find liability for inadequate screening
in the hiring or supervision of an abusive employee or volunteer is unclear
from the literature. In Daniels v. Williams, 474 U.S. 327 (1986), and
Davidson v. Cannon, 474 U.S. 344 (1986), the Supreme Court held that
negligence cannot be the basis for liability under the Civil Rights Act.
However, since those cases involved single, random instances of negligence, to
the extent that the failure to adequately provide supervision constitutes
"deliberate indifference" rather than mere negligence, there may be grounds
for liability (Soler et al., 1991).
The Use of Inaccurate Data: Defamation and Negligence Claims
The extent to which the state or private employers can be held liable
for the use of inaccurate data rests on the application of several ton law
theories, primarily defamation and negligence. An April 1984 report by the
SEARCH Group, Liability for Mishandling Criminal Records, contains a
useful discussion of the application of these theories to the use of inaccurate
criminal records, particularly with respect to the liability of state agencies.22
Defamation, which includes the common law actions of libel (written or
printed statements) and slander (oral statements), can arise when inaccurate
criminal records are disseminated without having made reasonable efforts to
ensure accuracy. Generally, plaintiffs suing criminal justice agency officials
on this theory will be hindered by the necessity of proving that the official
releasing the information was motivated by ill will or lacked reasonable
grounds for believing that the information was accurate.
A negligence theory is less onerous for plaintiffs. Liability can result
from the "dissemination of erroneous information, failing to exercise due care
in employing and supervising record personnel or possibly from merely
maintaining inaccurate records. Numerous courts have said that criminal
justice agencies do have a duty to exercise reasonable care to insure that their
records are complete and accurate and to prevent dissemination of inaccurate
records" (SEARCH Group, April 1984).
H. Unanswered Questions, Unresolved Issues
While deliberating the advantages and disadvantages of criminal record
checks, earnest consideration must be given to some principal issues which are
still in dispute. Resolving the issues outlined below is paramount to
conducting criminal record checks in a productive and equitable manner:
47
161
What information should be kept in criminal record repositories and
how much of it should be disseminated?
What categories and types of offenses are to be used in deciding
employment or volunteer placement decisions; which of these will be
mandatory disqualifying criteria, which will be discretionary?
Who within the organization receives the information and is responsible
for the final decision?23
How and when is the applicant notified and given an opportunity to
refute the record?
What is the applicant's employment/volunteer status pending the
outcome of the check?
What provisions are made for identifying and verifying the person to
receive the information and for ensuring that the information remains
confidential?
What types of employees and volunteers should be subject to screening?
And how often; at initial hire/placement only or periodically?
Given the differences in state laws authorizing or permitting criminal
record checks, is there a standard protocol than can be followed?
Who will pay for the costs associated with criminal background checks?
What is the outcome of an applicant's refusal to submit to background
screening, including a criminal record check and/or an organization's
noncompliance with background screening requirements?
► What is the applicant's hiring or placement status pending any
challenge to the accuracy of the criminal history information received?
Once these fundamental questions are dealt with, there are additional
considerations regarding the actual review of criminal history information once
an organization has obtained the applicant's record:
/ Nature, severity, number and consequences of incidents disclosed.
/ Age of individual at time of incident.
/ Amount of time that has passed since event occurred.
48
162
/ Circumstances surrounding each matter, including contributing societal
or environmental conditions.
/ Relationship between the incident and the type of employment or
service that applicant will provide.
• Applicant's employment or voluntary history before and after the
matter.
/ Applicant efforts and success at rehabilitation.
S Likelihood that the matter would prevent the applicant from performing
his/her responsibilities in a manner consistent with the safety and
welfare of the children served by the agency.
/ Circumstances and/or factors indicating that the crime is likely to be
repeated.
49
163
VI. OTHER SCREENING MECHANISMS
Legislators and the general public are strongly cautioned against
presuming that mandated criminal record checks are the end-all-be-all answer
to fighting child abuse. If this misbelief takes root, support for other equally
or more important measures may fail. The overriding sentiment is that
criminal record checks are only a small part of an overall solution and unless
they are done in conjunction with other screening measures, the money might
be better spent on alternative prevention strategies.24
By relying on the use of criminal records, organizations may overlook
other questionable behaviors -- including substance abuse, mental illness,
emotional problems, sexual difficulties, poor judgment and insensitivity to and
punitiveness towards children - that may indicate an individual's unsuitability
to work with or around children. Finkelhor and Williams (1988) found that
half of all child sexual abuse perpetrators had some prior social problem, such
as substance abuse or a psychiatric malady.
There are a multitude of other screening methods that child- and youth-
serving organizations can employ, ranging from standard interviewing and
reference checking to more complex and controversial procedures such as
screening against child abuse and sex offender registries, psychological testing,
drug testing, and home visits.
A. Screening Against State Central Child Abuse Registries
State central child abuse registries have become more popular in recent
years. These registries essentially consist of information from child abuse and
neglect reports. Some of the same criticisms, doubts and legal issues that
plague criminal history record checks have been raised with screening potential
employees and volunteers against state child abuse registries. Similar to the
plight of criminal justice information systems, state child abuse registries were
not developed for employment and licensing screening purposes. ■ instead,
child abuse registries were developed to help investigate and track child
protection cases and improve the provision of child welfare services; the focus
was almost exclusively on intrafamilial cases with the goal of family
preservation/reunification when in the best interests of the child.
The use of the child abuse registry as a screening device for child care
and youth-service workers grew out of the same helplessness and frustration
that induced organizations to access applicants' criminal records. However,
unlike criminal history records or sex offender registries, which are typically
maintained by law enforcement authorities, state child abuse registry
information is managed by the state social services agency responsible for
child protective services. Moreover, unlike conviction information, which has
50
164
passed the standard of proof beyond a reasonable doubt, child abuse registry
information has not been subject to such a test, compounding the problems of
inaccurate and incomplete data that beset many state child abuse registries.
A report from the California Children's Council denounced the growing
use of its state child abuse registry for screening purposes, stating that "As a
result of this rush to legislate, ... not much attention has been focused on the
use or misuse or the screening and recordkeeping processes. ..." The report
estimated that 65 percent of all child abuse allegations must be dismissed after
an investigation (for a variety of reasons) and the overwhelming number of
false reports makes registry accuracy "incomprehensible" (Sale et al., 1988).
Due to the haphazard nature in which screening against child abuse registries
originated, and the lack of uniformity in state statutes requiring such
screening, there is a need for well-defined criteria and procedural safeguards
to ensure proper maintenance and use of registry information.25 Cohen
(1985b) outlined some additional misgivings about the growing use of state
child abuse registries for screening purposes:
► Many child abuse registries are indexed by child subject, not alleged
perpetrator;
► Definitions of reportable child abuse vary across states and
classifications and terms are not uniform; and
► Registry classifications are generally too broad and all-encompassing to
be used appropriately for screening.
Use of State Child Abuse Registries for Screening Purposes
Several studies document the extent to which screening potential child
care and youth-service workers against state child abuse registries occurs,
although it appears to be predominantly child care workers who are subject to
this practice. According to Hayes and her colleagues (1990), approximately
38 percent of the states conduct child abuse registry checks for family day ca;e
staff; about one-third do child abuse registry checks on center care staff; and
one-third conduct child abuse registry checks for both family and center care
providers.
The National Center for State Courts (1988) indicated that 68 percent
of responding states use the central child abuse registry to screen applicants for
day care, foster care and adoption; over half (56 percent) use the registry to
track known abusers between jurisdictions (47). While screening in some
states is limited to adoption, foster care and day care employees, others screen
babysitters, camp counselors, child protective services (CPS) social workers,
and volunteers who work with children. Figures D and E below represent a
breakdown of child abuse registry screening activities for 45 states.
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Figure D: SCREENING AGAINST STATE CHILD ABUSE REGISTRIES
Breakdown of Activities of 45 States
40
36*
Foster core AOoptive oorente COy care nirino Ooy core licenses
Figure E: SCREENING AGAINST STATE CHILD ABUSE REGISTRIES
Breakdown of Activities of 45 States
4S
40
30
25
27*
Source: National Center for Slale Courts. 1988
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166
Presented below is a synopsis of several states' policies regarding the
use of child abuse registries for screening (as conveyed by the National Center
for State Courts, 1988), to help give readers an idea of the different state
procedures:
■ Connecticut screens adoption and foster care applicants against family and
individual files only; there are no perpetrator tiles. For day care applicants,
"the registry will provide information on when the person appeared in the
records; die reason for referral; and the suspected perpetrator. All household
members over 16 are checked and must sign a release.
■ Florida screens adoption applicants and employees/volunteers seeking work
with children. In 1985, legislation was passed calling for closer screening of
those providing out-of-home care or persons working with children in shelters,
foster care programs, drug and mental health programs, day care and other
residential or non-residential licensed or registered programs. Applicants
must consent to a search and the registry provides the following information:
search results, date of report, and procedure for inspecting court records if
judicial determination of abuse was made. No fee is charged for confirmed
reports.
■ New Hampshire screens day care and foster care staff and prospective
adoptive parents. In 1986, the registry received over 5,300 requests from the
Bureau of Child Care Standards of Licensing, over 980 requests from District
offices, about 520 from other licensing agencies, and over 60 each of out-of-
state and adoption searches. Disclosure is limited to designated District Office
Supervisors, Bureau Administrators and other designated State Office
personnel.
■ Pennsylvania requires child care services employees to certify whether they
have or have not been named as a perpetrator in a founded report; applicants
cannot be hired if named in a founded report in the last 5 years. In 1986,
Pennsylvania processed close to 46,000 requests, about 97.5 percent of which
were potential child care services employees and 2.5 percent seeking voluntary
certification.
■ Utah screens prospective foster care providers, adoptive parents, and
unlicensed day care providers. Department of Social Services employees are
exempt from screening. "The perception of registry personnel is that 'hits'
are important when they occur but are relatively rare. " The state gets about
213 calls per month from other states requesting information on suspected
perpetrators.
Though individual states have a significant amount of autonomy in
governing how their child abuse registries operate, not all states are satisfied
with how the registry is currently managed. Figure F on the following page
displays how 45 responding states judged their own child abuse registries.
Only one-fifth of the states (9) reported an overall self-evaluation of "very
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167
good" for their registry; over one-third (17) classified their registry as "good";
14 as "fair"; and 5 as "poor."
Figure F: SELF EVALUATION OF CENTRAL CHILD ABUSE REGISTRY
Responses or 45 States
Good C20 0»
F«lr C3^ OSO
Source: National Center for Slate Courts, 1988
Likelihood of Identifying Potential Offenders via State Child Abuse Registries
Given the slight chance that a potentially abusive individual will have a
criminal record on file in either a state or national criminal history repository,
child- and youth-serving organizations may resort to screening against a state's
central child abuse registry for better odds. Unfortunately, there is evidence
that screening via child abuse registry checks may be just as ineffective as
criminal record checks in revealing potentially abusive child care and youth-
service workers.
In New York State, for example, Governor Mario Cuomo recently
sought to rescind the state's 1984 law requiring screening of prospective child
care workers against the state child abuse registry to save $1 million. Such
action was prompted by findings that the screening process has proved
"inefficient and ineffective," and provided minimal return for the money.
According to the State Social Services Department, less than 1 percent of the
103,831 people screened in fiscal year 1990 had been accused of child abuse
and/or neglect (The New York Times, March 12, 1993). As indicated in the
additional examples below, the literature reveals that the identification or "hit"
rate using child abuse registries ranges from less than 1 percent to only about
2 percent (DHHS, 1985; National Center for State Courts, 1988):
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• Florida estimates that out of about 200.000 requests, only 189 result in a hit
(.09 percent).
• Of the close to 46.000 requests Pennsylvania processed in 1986. only 146 (.3
percent) had a record in a founded or indicated report: 69 percent for physical
abuse; 16 percent for sexual abuse; 14 percent for neglect; and 2 percent for
emotional abuse.
• Of the 14,000 - 15.000 searches a year conducted by Virginia for persons
providing child care services, about 2 of every 500 (.4 percent) result in a hit.
• Screening of 366 applicants in New Hampshire yielded 167 possible matches,
of which only 9 (about 2 percent) were actual hits.
• Connecticut estimates that 20 to 25 percent of the names checked are found in
the database, however it is not known how many of these are actual
perpetrators since the registry lists non-perpetrators as well.
• Since Illinois began screening foster home and day care center staff in 1982,
650 matches have been identified; since screening of staff in licensed facilities
began in 1986. 228 hits have resulted -- the total number screened is not
indicated.
As an alternative to screening against state child abuse registries,
Cohen (1985b) suggests that organizations consider (1) requiring applicants to
sign a declaration under penalty of perjury that they have not committed (or
been convicted of) specified crimes; (2) disapproving persons who as
parents/guardians have had their parental rights terminated or whose children
have been deemed dependents of the state: (3) mandating checks of any
previous denials, revocations or refusals to renew applicable licenses; (4)
verifying an applicant's educational credentials and employment history; (5)
relying on character/ employment references, not friends or relatives; and (6)
instituting a probationary hiring period.
B. Screening Against State Sex Offender Registries
Maintaining a registry of convicted sex offenders, particularly child sex
offenders, against which child care and youth-service workers can be screened
is yet another protective option that many states have adopted or are exploring.
Proponents of sex offender registries maintain that because sex offenders pose
a high risk of reoffending after release from custody, their mobility must be
monitored. Supporters of mandatory registration further argue that ensuring
the public's safety takes precedence over the privacy rights of a convicted sex
offender. Although Congress has considered legislation to encourage states to
establish a sex offender registration process and central location for
information collection, no such legislation has passed. Less than half of the
states (21) have registration requirements for sex offenders; however, in 1987,
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only 8 states had such a requirement. This inclination for states to track sex
offenders is still on the rise; at least 12 states have introduced or drafted
legislation addressing this issue.26
For those states that have implemented sex offender registries,
problems seem evident, particularly when it comes to enforcing required
registration. For example, as shown in Figure G, Texas has more than 3,000
sex offenders on parole, but only about 1,800 offenders (60 percent) are
registered (Office of Attorney General, personal correspondence, 1993).
California estimates its compliance rate to be from 72 to 89 percent, while
Washington State revealed a compliance rate of 81 percent as of November
1992, up from 76 percent and 57 percent in November 1991 and 1990
respectively (Lewis, 1988; Washington State Institute for Public Policy, 1992).
More often than not, the burden of registration falls upon the individual
offender, not the institution from which he/she was released or the legal entity
which rendered the offender guilty of a sex crime. And while penalties may
be enacted for failure to register, the ability to enforce compliance is lacking.
Figure G: COMPLIANCE WITH SEX OFFENDER REGISTRATION
Selected States
Ca I if ornia*
Washington
* California reported 72% and 89% for two different groups released from prison in 1981.
Sources: Lewis, 1988; Office of Attorney General, Texas, persona] correspondence, March 1993;
Washington State Institute for Public Policy, 1992
States also do not agree on who should be required to register — adult
and juvenile offenders, first or "habitual" (i.e., repeat) offenders — and for
how long offender information should be kept on record. For example,
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Arizona and California require lifetime registration of sex offenders, while
New Hampshire and Washington State only require lifetime registration of
some offenders and 10- or 15-year registration for others. Most states'
registration requirements range from 10 to 20 years, but many will lessen the
term if the court declares the offender "rehabilitated."
California and Washington are two states requiring juveniles to register,
although California rescinds the requirement once the offender reaches age 25.
Similarly, Texas registers a juvenile if he/she is committed to the Texas Youth
Commission, but removes the name once the individual turns 21. Given the
high incidence of abuse by juveniles and the recidivistic nature of child abuse,
lifetime registration of both adults and juveniles may be warranted. The
National Center for Missing and Exploited Children (1992), however,
recommends in its model state legislation that only adult sex offenders be
registered.
As with criminal history information systems and state child abuse
central registries, there are many issues to untangle. In fact, Tennessee's
General Assembly suspended implementation of the state's sex offender
registry to screen child care providers until July 1993 to enable further review.
A 1988 report on the effectiveness of California's sex offender registration
requirements identified several major problem areas: (1) lack of time and
manpower at the local agency level, (2) lack of a statewide automated sex
registration system and up-to-date information, (3) lack of knowledge or
cooperation by the offender to provide necessary registration information, (4)
lack of staff training and familiarity with the registration system, (5) lack of
punishment for sex registration violators, and (6) lack of information sharing
among criminal justice agencies (Lewis, 1988).
Primary recommendations outlined in the National Center for Missing
and Exploited Children's (NCMEC) proposed model state legislation include:
Require lifetime registration.
Require registration for both felony and misdemeanor convictions for
relevant crimes.
Require sex offenders to appear in person to register.
Require regular verification of an offender's address, at least annually.
Require registration within 10 days of assuming a new residence.
Establish penalties for failure to comply with registration
requirements.
Allow information to be accessed only by law enforcement or
authorized persons.
Require local law enforcement to relay information to state criminal
history repositories.
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The last two NCMEC recommendations regarding access and
availability of information are particularly important and warrant elaboration.
Overwhelmingly, the states that have established sex offender registries limit
their use to law enforcement purposes and do not allow other organizations or
individuals to request the information for employment or licensing purposes.
Two notable exceptions are (1) Illinois, which allows the Department of
Children and Family Services access for background investigations, and (2)
Oregon, which allows the Department of Human Resources access and also
notifies the Teacher Standards and Practices Commission if the offender is a
teacher or administrator.
C. National Practitioner Data Bank
The National Practitioner Data Bank, which is a national system
enabling hospital and other health care entities to check on the status of a
physician's license and whether a physician is or has been the subject of
disciplinary actions, may be a useful model in developing a national
background check system for persons working with children.
In an effort to crack down on the ability of incompetent or
unprofessional physicians to flee their current locale and set up new practices
in different hospitals or states, Congress passed the "Health Care Quality
Improvement Act of 1986," Public Law 99-660. Title IV, Section 402 of this
law ("Encouraging Good Faith Professional Review Activities") requires the
reporting of information to a central source when a physician's license is
revoked or suspended, or if the physician is censured, reprimanded or placed
on probation. Congress' goal was to develop a comprehensive national
reporting system to follow unfit doctors from place to place. Congress
claimed that the establishment of such a data bank was necessary since state
disciplinary review boards and existing peer review systems failed to
adequately identify incapable practitioners.
The Department of Health and Human Services' (DHHS) Bureau of
Health Professions garnered responsibility for implementation of such a data
system and effective January 1989, DHHS awarded Unisys Corporation a 5-
year, $15.9 million contract to develop and operate the National Practitioner
Data Bank. (According to the Legislative History of P.L. 99-660, the
Congressional Budget Office estimated that if DHHS maintained the
clearinghouse, costs to the federal government would run $30 million in the
first fiscal year and $10 million in each fiscal year thereafter.)
Similar to legislative efforts calling for mandated criminal record
checks of potential child care and youth-service workers, P.L. 99-660
stipulates that hospitals and health care entities must obtain information from
the data bank prior to hiring a physician and once every two years for existing
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medical staff. Those hospitals and other medical care facilities which fail to
consult the data bank can find themselves liable if the physician is later sued
for medical malpractice. Civil penalties of up to $10,000 were also instituted
to help protect the confidentiality of information. It should be noted, however,
that DHHS advises health care entities to use the data bank with discretion as
it is "primarily a flagging system whose principal purpose is to facilitate a
more comprehensive review of professional credentials. Data received. . .
should be used in combination with other sources of data in making
determinations on granting clinical privileges or in employment, affiliation, or
licensure decisions" (DHHS, 1990b).
The legislative history leading to the enactment of this law describes a
problem not unlike what happens in child care organizations that discover an
abusive staff member: "[H]ospitals too often accept 'voluntary' resignations of
incompetent doctors in return for the hospital's silence about the reasons for
the resignations" (Legislative History to P.L. 99-660, 1986). To ensure that
health care entities and physicians won't resort to "plea bargains," P.L. 99-660
also requires health care entities to report cases where they resolve not to
conduct an investigation if a physician agrees to relinquish his/her clinical
privileges.
Clearly, much of the rationale which led to the establishment of the
National Practitioner Data Bank is relevant to the current predicament faced by
child- and youth-serving organizations aspiring to weed out potentially abusive
employees/volunteers who may infiltrate their agency. A closer look at the
operation, maintenance and effectiveness of the data bank in ensuring quality
health care would be valuable.
D. Teacher Identification Clearinghouse
The Teacher Identification Clearinghouse, operated by the National
Association of State Directors of Teacher Education and Certification
(NASDTEC), is a nationwide database of all teachers whose certification has
been denied, revoked or suspended over the past 15 years. The clearinghouse
was instituted about four years ago. primarily as a response to prevent child
abuse in the schools. Donald Hair, NASDTEC's Executive Director,
estimates that about 70 percent of teacher revocations in the clearinghouse are
for child sexual abuse. He indicated that broadening the scope to include
information on all school employees (e.g., bus drivers, custodians) would be
even more beneficial. The clearinghouse currently does not disseminate
information to outside organizations, mainly because of legal constraints, but
Hair notes this is an area worth exploring (personal correspondence, February
5, 1993).
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State membership to the Teacher Identification Clearinghouse is
voluntary. Currently all states except Iowa (which is in the process of joining)
have signed clearinghouse agreements; this is a noteworthy increase from just
eight member states in 1988. The cost of joining the clearinghouse is included
as part of NASDTEC's membership fees, and each month NASDTEC sends
out a list of all new revocations to every state; a complete listing is provided
quarterly. Because listings do not include specific charges associated with the
revocation or denial, states are directed to contact their respective certification
offices if they require more information. Hair estimates that it costs
NASDTEC about $20,000 a year to maintain and operate the clearinghouse.
Both the National Practitioner Data Bank and the Teacher Identification
Clearinghouse are two persuasive examples of how Congress and a national
professional association, respectively, were able to establish fruitful central
information systems to be used for employment and licensing screening
purposes. Legislators and advocates embarking on further efforts to develop
such an information system for child- and youth-serving organizations are sure
to benefit from a closer examination of the operation, maintenance and costs of
these two existing setups.
E. Application Forms and Personal Interviews
Developing a comprehensive written application and supplementing or
clarifying information through a personal interview(s) can provide a
tremendous amount of knowledge about a potential employee/volunteer and
should be a first step in any selection or hiring process. Disqualifying
information may be disclosed in these early stages, precluding the need to
conduct more intensive and costly background screening. However, in today's
competitive job market, there is growing suspicion about how forthright an
applicant's answers will be either on an application form or in a personal
interview. About 25 percent of resumes contain incorrect or exaggerated
information, ranging from inaccuracies about identities and educations to
falsifying reasons for leaving a job (Pankau, 1990). And in answer to the
question "Does anybody really admit to criminal activity?" a 1987 study of
225,000 job applicants showed that over 75 percent made no admissions of
wrongdoing; about 6 percent admitted involvement in theft allegations at prior
employment; just over 4 percent admitted committing a felony; approximately
6 percent admitted committing minor criminal acts; and close to 5 percent
admitted relatively frequent illegal drug use on company premises. These
percentages are not to be construed as actual incidence rates (Sackett et al.,
1989).
Keeping in mind that an individual may fabricate his/her competence,
but being careful not to dismiss the importance of the application and ensuing
interview, organizations should use these activities as a backdrop to judging a
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potential employee or volunteer's overall character. The application form
should be detailed enough to give more than a cursory overview of work and
educational history. Unexplained gaps in employment, declining salary
history, unusual lengths of military service, or obvious overqualifications
should raise warning flags. The application also should include a specific
question regarding convictions and any allegations of child or sexual abuse and
indicate that false statements are grounds for immediate dismissal. Even if an
applicant lies, such directness sends a message about the agency's position on
child abuse. In addition, if contrary information is later discovered through
other screening procedures, the organization (as previously stipulated) has the
discretion to deny the applicant the position solely on the basis that he/she
lied.
In their survey of public schools, Titus and DeFrances (1989) found
that on the application forms, 21 percent of the schools ask about other names
used by the applicant, 16 percent require fingerprints, 11 percent require
signing a waiver to allow review of state/ local police and FBI files and 63
percent require none of these. In determining an applicant's eligibility:
/ 84% ask about reasons for leaving previous employment
/ 46% ask about revocation or denial of teaching certificate
/ 34% ask about convictions or guilty pleas
/ 27% ask about prior arrests
/ 15% ask about pending charges
/ 7% ask about acquittals
• 78% ask what the specific charges were in cases where an
applicant mentions a criminal charge
/ 1 1 % ask about none of these
Much of the literature indicates that the personal interview is by far one
of the most important and useful screening devices in selecting staff.
Organizations are advised to develop a standardized interview to assure
consistency among applicants and help eliminate any subjectivity associated
with using multiple interviewers. A team approach to interviewing and
subsequent hiring decisions is also recommended, especially for larger
organizations, to increase objectivity and attain different perspectives.
Interviewers should address issues such as an applicant's experiences
with children; childhood experiences (especially history of abuse); child
developmental issues; problem-solving scenarios and proper caregiver
behavior; and perceptions of children and childhood behavior. The use of
vignettes, hypothetical situations, other written exercises and role playing are
all recommended.27
175
In addition, the Colorado Department of Social Services (1987)
recommends having the applicant write a brief autobiography, inviting him/her
to "share anything else you would like us to know about you." The
department also points out that videotaping the interview, with the applicant's
consent, saves time and provides a permanent record of exactly what
transpired. Videotaping not only provides the agency with a standardized
document that acts as a future safeguard, but may also deter child abusers
from applying, knowing that any misleading or false information will be
recorded on tape.
Screening Tool Used by Big Brothers/Big Sisters of Greater Lowell, MA
McCormack and Selvaggio (1989) developed an interview screening
device specifically for the Big Brothers/Big Sisters of Greater Lowell
(Massachusetts) to help identify sexual offenders who seek access to children
through youth-oriented organizations. The authors' goal was to operationalize
certain characteristics to measure the presence and degree of a given attribute.
They caution, however, that the indicators are not intended to "prove" that the
potential volunteer is a pedophile, but instead provide enough information to
help alert personnel to potentially abusive applicants. McCormack and
Selvaggio outline the following 10 personal characteristics which, if found
together, should pique concern about potential volunteers:
1. Indicates a preference for a child of a specific age.
2. Indicates a preference for a child who has a history of abuse and
neglect.
3. Has a history of being abused as a child.
4. Had little social contact as a teenager.
5. Experienced frequent moves.
6. Has been overly active in the community in the affairs of
children.
7. Has friends who are much younger.
8. Refers to children as innocent or pure.
9. Has many hobbies and interests that are appealing to children.
10. Is undergoing his/her second or subsequent match with a child.
Inclusion of the last variable was based on Wolffs (1986) finding that
almost twice as many reported incidents involving Big Brothers/Big Sisters'
volunteers occurred in a second or subsequent match. In cases where adults
are paired with children, volunteers often may terminate matches early on
because the child is unresponsive or the two did not get along.
The 245-item screening tool is broken down into subsections on
background information; relationships with children; family structure and
environment; present life-style and relationships; and the match relationship.
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Questions encompassing the above 10 indicators are interspersed in the
appropriate sections. McCormack and Selvaggio affirm that using such a
screening device serves to (1) protect the credibility of caseworker; (2) shield
the community agency from liability; and (3) limit access of offenders into
youth-oriented community agencies. The authors strongly recommend,
however, that the instrument be used in conjunction with other precautionary
screening procedures.
John Walker, Executive Director of Big Brothers/Big Sisters in Lowell,
said the agency has been using the interview screening tool for about five
years now. The whole set of questions takes about an hour and a half to
complete and is divided into two parts, the second of which focuses more on
sex-related issues and is broached only after the applicant has had time to
become comfortable with the agency and interviewer. The interview screening
tool is used in conjunction with other screening practices, including criminal
background checks, reference checks, asking applicants to respond to
hypothetical situations, and home visits. Applicants are notified of all steps in
the volunteer selection process, which takes two to four months to complete.
According to Walker, about 25 to 35 percent of applicants do not follow
through, and about a quarter of all applicants are rejected outright for "one
reason or another." In 1991, the agency screened close to 100 volunteers who
made it past the initial selection criteria (personal correspondence, November
6, 1992).
F. Reference Checks
Many organizations verify or supplement their knowledge of an
applicant by contacting a past employer. Although conferring with an
applicant's past employer(s) seems like an obvious step in pre-employment
screening, Lotitio and Bryant (1988) found that up to 75 percent of employers
fail to check references before hiring an individual. Some organizations may
shy away from reference checking because in today's business world, it can be
a double-edged sword: on one side is the power of a former employee to sue
for defamation; on the other, the power of a third party to sue an employer for
negligent hiring.
An employer's responsibility to check into an applicant's background,
however, is magnified when the position requires the applicant to come into
contact with the public, especially unsupervised contact. Case in point: A
Colorado state court awarded a plaintiff $210,000 in damages after a
McDonald's worker, who had previously been convicted of sexually assaulting
children, assaulted a 3-year-old boy. McDonald's did not know about the
conviction, nor did it check all his references. The state agency that placed
the worker shared the liability (Collyer and Eastus, 1991).
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To avoid defamation and negligent hiring claims when checking or
providing references, Lotitio and Bryant (1988) suggest the following:
maintain a corporate policy of truthfulness and accuracy; document all pre-
employment investigation; insure that communications concern work-related
matters only; obtain a written release giving employee's consent to release
information; have the applicant explain any gaps in employment history;
centralize who provides reference information; and provide information on a
need-to-know basis only. In addition, an employer's verbal or written
assurance that employment (and other) references will be checked will help
assist in deterring those who have a problematic employment history.
Figure H provides examples of reference checking practices followed
by Big Brothers/Big Sisters and a sampling of public schools, while Figure I
indicates that public schools are inclined to conduct reference checks, (both
with prior employers and "other" character references), rather than criminal
record checks.
Figure H: TYPES OF REFERENCES CHECKED
By Big Brothers/Big Sisters and Public Schools
Pub i ic ccrioois
Big Brotrws/6lg Sisters
Past eroioyers S23 Other character roty//A Other vol oros
Sources: Carrilio. 1987: Titus and DeFrances. 1989
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178
Figure I: TYPE OF SCREENING BY PUBLIC SCHOOLS
By Employee Position
i=*et emciyr '•of ac R\ N Otner rB< <x V///X Criminal record ce
Source Titus and DeFraoces. 1989
G. Psychological Tests
As previously discussed in Section II, the literature reveals several
offender and situational characteristics believed, but not proven to be linked to
abuse. Some child abuse professionals have taken this philosophy a step
further to construct psychological tests that they hope will determine with
appropriate scientific validity a causal relationship between
personality/behavior traits and child abuse. The church, in light of sexual
abuse scandals, has increasingly turned to the use of such psychological and
personality tests for prospective pastors. The Denver Post (April 28, 1991)
reported that "[m]ost ministers believe they're 'called by God,' but a growing
number of churches and synagogues want a recommendation from a
psychologist as well."
The power of psychological tests to identify employees/volunteers with
a propensity for abuse, however, is debatable. After reviewing the literature
on various psychological tests, Murphy and Peters (1992) concluded that
"there is no research evidence to suggest that clinicians using all the tools
available can profile sexual offenders with sufficient validity and reliability. . .
. " Many psychological tests are general in nature and those tests that are
child-abuse specific were originally developed to assess abusive parents, not
child care and youth-service workers.
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Some of the More Weil-Known Psychological Tests
Probably the most recognized psychological test for assessing a parent's
propensity for child abuse is Joel Milner's Child Abuse Potential Inventory
(CAP). The CAP delves into six major areas: distress, rigidity, unhappiness,
problems with child and self, problems with family, and problems from others.
Those with high abuse scores are more likely to display a history of childhood
abuse, low self-esteem, poor ego development, immaturity, moodiness,
frustration, loneliness, self-centeredness and an aversion to responsibility
(Anderson, 1988). Using the CAP, Atten and Milner (1987) also found that
clear job expectations and overall job satisfaction were modestly related to the
measure of child abuse potential (i.e., those content with their jobs are less
likely to engage in abusive behavior).
Haddock and McQueen (1983) administered the CAP Inventory, the
Minnesota Satisfaction Questionnaire (MSQ) and a General Information Form
to 2 1 known abusers and 2 1 known non-abusers employed by out-of-home care
institutions. Their sample accounted for four job categories: psychiatric
technicians, supervising psychiatric technicians, teaching home parents, and
hospital workers/janitors. In addition to Milner's CAP-I Abuse scale, the
authors found the following combined variables to be significant:
► MSQ independence subscale, which measures an employee's satisfaction on
the chance to work independently;
»• MSQ advancement subscale, which measures hope of job
advancement/promotion;
► MSQ achievement/accomplishment subscale;
► Employee's own number of children (two-thirds of non-abusers had less than
2 children, while 24 percent of abusers had 2 children and 35 percent had 3 or
more);
► Childhood exposure to abuse and extreme discipline;
► Alcohol consumption; and
► Marital status/distress.
Jones and colleagues (1990) did studies involving the CAP, the
Personnel Selection Inventory (PSI), and other tests to assess honesty,
violence, substance abuse, emotional stability and safety. The authors
identified four areas in which child abusers tend to have problems: (1)
difficulty adjusting socially (may be antisocial, alienated, lonely or delinquent);
(2) emotionally unstable (experience a variety of conflicting emotions such as
frustration, anxiety, depression, stress, low self-esteem); (3) impulsive and
unable to resist their wants; and (4) frequently conflict with authority figures.
While the authors concluded that the PSI is an effective instrument for
identifying potentially abusive employees, they caution that it is "not a panacea
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and should be used in conjunction with other credible selection devices (e.g.,
interviews, reference checks, criminal background checks, job simulations,
physical drug tests, and supplementary paper-and-pencil tests) and effective
monitoring programs (e.g., home visits, interviews with children, parents and
child care workers)."
The MMPI is another standardized psychological test that employers
may consult. However, recent studies show that the MMPI may be an
inappropriate tool since it cannot predict sexual abuse or provide a single
profile that describes child molesters.28 Organizations must be careful not to
overestimate the usefulness of the MMPI; administered alone, as with other
individual screening mechanisms, the MMPI cannot adequately predict abuse
but may help provide one piece of the puzzle.
Tfie Abel Screen
More recently, Dr. Gene Abel of the Behavioral Medicine Institute of
Atlanta has developed a test he coined the Abel Screen to facilitate the
identification of individuals with pedophiliac tendencies. The screen, which is
a series of four tests whose scores reveal 20 separate kinds of sexual interests,
is considered to be most effective in detecting those who are attracted to young
boys. According to Abel, the screen is noninvasive, highly accurate, and can
be administered in about 90 minutes in any setting (Archdiocese of Chicago,
June 1992c). As of this writing, the research on which these conclusions are
based is in preparation for publication. To date, the authors of this report
have not identified any published research findings that elaborate on the work
done with the Abel Screen.
Abel, himself, recognizes that the screen "will not cure the problem but
it will be a response to the difficult issue of child molesters putting themselves
in positions with access to children" (Archdiocese of Chicago, June 1992c).
Further research is needed using various types of child- and youth-serving
workers, not just known sex offenders undergoing treatment, to document the
effectiveness of the Abel Screen.
Based on the literature reviewed, the appropriateness of
psychological/personality testing to predict potentially abusive behavior
remains unclear. However, if an organization is contemplating the use of
Milner's CAP Inventory, the Abel Screen, the MMPI or some other similar
test as a screening mechanism, several issues first need to be resolved. These
include (1) identifying the most appropriate psychological test, if any, to
administer; (2) training or hiring qualified staff to conduct and interpret the
test; (3) presenting the test in a non-offensive, non-intrusive manner, especially
with regard to volunteers; and (4) determining how to cover the costs
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associated with psychological screening. Anderson (1988) raises the following
additional considerations:
Who would designate applicants as having "failed" a test?
Who will safeguard the test scores and make sure they remain confidential?
What child abuse potential data will be released to failing applicants and how
will it be released?
What can be done to diminish the stigma associated with a failing test score?
Will applicants who fail a test be allowed to retake it? at what point?
H. Additional Pre-Employment Screening Options
For those organizations that want to exhaust background screening
options, there are a few additional methods open to them. One of the more
straightforward and affordable involves obtaining an applicant's motor vehicle
report (MVR). The MVR is useful to confirm an applicant's name, social
security number, birth date and other identifying information, and also serves
as a cross-check to uncover false or misleading information or other states
where the person has lived or worked. Better yet, most states will charge only
a few dollars for this service (Long, 1992).
Another alternative, which may be especially useful for the voluntary
organizations and foster care or adoptive parent applicants, is home visits or
assessments. Carrilio (1987) found that 90 percent of Big Brother/Big Sister
affiliates conducted home assessments of potential volunteers. Two additional,
but somewhat controversial electives to be used in combination with other
screening procedures include drug testing and requiring a one-year period of
residency.
To exercise many of the available screening methods presented here
may entail a substantial doling out of human resources and chipping away at
valuable time; two precious commodities that most organizations are reluctant
to squander. The mobility of today's society also presents special difficulties
in conducting background investigations and may lead to a demand for more
time and people to complete the screening than originally allotted. Those
agencies with insufficient personnel or time to conduct thorough pre-
employment screening, but which have ample discretionary funds, may want to
look into using a private background investigative firm. Services provided by
these firms vary but can include reference checks, criminal background
checks, drug screening, psychological testing and polygraph tests. The
advantages of using an outside source to conduct background screening
include: quick turnaround, legal accuracy, thoroughness, and in-depth
analysis. The downfall is that these services may be only local or regional in
breadth and can be quite costly.
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Clearly, screening against state child abuse and/or sex offender
registries is not without problems, many of which are similar to the pitfalls of
criminal record checks. In addition, the National Practitioner Data Bank and
the Teacher Identification Clearinghouse are limited in their scope and
accessibility. Given the complications associated with these various
information systems, child- and youth-serving organizations may opt for other
screening measures that rely less on outside systems and more on internal
investigation.
I. Post-Hiring/Placement Procedures to be Used in
Conjunction with Background Screening
Many authors urge that prevention of institutional abuse should not stop
at the pre-employment screening of applicants, but continue by addressing on-
the-job issues such as training and improved supervision and monitoring.
Screening, coupled with appropriate personnel policies, will help protect
children and boost staff productivity. Adequate day-to-day supervision of staff
and a probationary period for new employees/volunteers, ranks high on the
safeguard list.29 In fact, Finkelhor and Williams (1988) found that almost
half of the perpetrators had been employed at their day-care job for less than a
year at the time the abuse occurred.
"The agency needs a clear and concise policy that sets the parameters
for discipline and child management. An overall agency philosophy and tone
or attitude must permeate throughout the ranks of the staff, and it must be
effectively communicated" (California Association of Services for Children,
1987). On the advice of DHHS (1985), an organization's written policies
should include: (1) a code of conduct for staff relating to their behavior with
children; (2) policies on reporting suspected abuse; (3) policies on
investigating staff or applicants concerning abuse; and (4) policies on hiring
staff previously accused, indicted or found guilty of abuse. Copple (1990) also
recommends creating linkages between various regulatory systems regarding
staff qualifications and certification requirements to help unify the work force
and extend training opportunities.
Ongoing personnel training should include coverage of facility's
emergency plans and reminders on safety procedures; principles and practices
of child care and the facility's philosophies; a review of administrative policies
and procedures; and crisis management techniques. An additional line of
defense recommended for child- and youth-serving organizations consists of
awareness programs for children, parents and all employees and volunteers
who work with or around children (77?^ News Chief, September 28, 1984).
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J. Summary Statement Regarding Screening Methods
Each of the screening procedures outlined in this section yields, for the
most part, different information about an applicant's character. While criminal
record and sex offender registry checks may provide specific criminal
information such as felony convictions, screening against state central child
abuse registries instead offers information gleaned from civil child protection
investigations. In comparison, the more standard hiring practices (e.g.,
reference checks, application forms, personal interviews) provide bits and
pieces of information that when culled together help an employer gauge an
applicant's integrity and stability. Obviously all screening methods and other
prevention strategies are not without cost implications for an organization.
Because most organizations do not have the financial or human resources to
employ all of these methods, a thorough assessment of the relative merits of
each practice is essential.
VH. CONCLUSIONS AND RECOMMENDATIONS
A. Summary - What We Know to Date
There is no disputing that we -- legislators, policymakers, child
advocates, service providers and other concerned parties -- have our work cut
out for us in fighting out-of-home abuse perpetrated by child care and youth-
service workers. The first step, determining the true scope of the problem, is
not an easy task given (a) the multitude of settings in which child care and
youth-service workers reside; (b) the millions of children who come into
contact with these adults; and (c) the absence of uniform definitions or
methods to identify physical and sexual child abuse.
There are no easy answers to preventing extrafamilial abuse. We know
that people who abuse or neglect children in out-of-home settings are a diverse
and complex population for which no single profile exists. And given the
unpredictability of human behavior and the belief that there is not one but
rather a series of factors leading up to an abusive incident, we must accept the
impossibility of being 100 percent confident that all potentially abusive
employees and volunteers have been screened out. This, however, does not
mean that child- and youth-serving organizations are powerless; they can take
advantage of the many available screening options, being careful not to rely on
one exclusive mechanism in determining an applicant's suitability.
From the discussion of legislative and regulatory activity affecting the
screening of individuals who work with children, the crafting of any new
federal and state legislation must be governed by a solid understanding of the
issues. These complex issues include: identifying situations where children
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are most at risk, improving the timeliness and accuracy of criminal record
checks (e.g., enhanced data quality and disposition reporting), and developing
procedures regarding the confidentiality and correction of background
information. Improved communication and appropriate information-sharing
between all relevant entities (e.g., child- and youth-serving organizations,
federal and local law enforcement agencies, child protective services, licensing
and regulatory agencies) will also go a long way toward the development of
more effective responses to out-of-home abuse.
Criminal History Record Checks
As knowledge about out-of-home abuse has increased over the years,
there has been a proliferation of wide-ranging ideas on how we should react.
The area of criminal record checks and access to individual criminal history
files, in particular, has received much attention and is a domain fraught with
controversy and sticky moral and legal issues. Because empirically-based
literature assessing criminal record screening of child care and youth-service
workers is limited, current well-entrenched conflicts over the effectiveness of
this type of screening are not likely to be settled anytime soon.
Based on the literature reviewed, we can conclude that criminal record
checks are not the cure-all to preventing out-of-home child abuse perpetrated
by any one of the millions of child care and youth-service workers. Even if
all child- and youth-serving organizations enjoyed direct access, free of
charge, to state and federal criminal history records, the problem of abuse
would not magically be eradicated. Child abuse is a complex problem to
which there is no quick fix. Criminal record checks obtained in a timely
fashion can provide a useful and important piece of the employee/ volunteer
selection puzzle; however, they do not provide the complete picture of an
applicant's suitability. And due to the lack of uniformity in existing state laws
and regulations, criminal record checks are not applied consistently and across-
the-board for all types of employees/volunteers who work with or around
children. Further investigation regarding the appropriate use of criminal
history information is needed, along with specific recommendations to increase
the effectiveness of such checks.
Other Screening Mechanisms
The synopsis of other screening methods indicates that screening
applicants against state child abuse or sex offender registries is not without
problems, many of which are similar to criminal record checks (e.g., access,
accuracy, timeliness, fairness to applicant, likelihood of identifying an
individual with a record). The availability of child abuse and sex offender
registry information, together with additional data maintained in systems such
as the National Practitioner Data Bank and the Teacher Identification
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Clearinghouse, also raises questions of efficiency. While each system may
serve a slightly different function and keep its own separate records, there may
be some duplication of efforts, especially with regard to criminal history
repositories and sex offender registries. Further inquiry about the possible
merging of systems and/or sharing of records would be useful for both
providers and users of background information.
Some of the other screening mechanisms discussed are also subject to
limitations. For example, valid documentation as to the effectiveness of
psychological/personality testing in identifying potential abusers is lacking.
And even standard reference checking has become hindered by fears of
defamation and negligent hiring claims. Two relatively problem-free methods
are a comprehensive application form and in-depth personal interview
procedures. Although it is clear that all child- and youth-serving organizations
should inquire about certain issues (e.g., criminal convictions, work and
educational history), the range of more intensive questions asked may differ
slightly depending on the type of child- and youth-serving agency and the
applicant position being considered.
B. Preliminary Recommendations for Effective Screening
Although a number of issues remain for analysis and much empirical
evidence must be gathered to properly evaluate the effectiveness of various
screening methods, child care and youth-serving entities do have a number of
available options to screen prospective employees/volunteers who work with
children. The recommendations presented in the literature fall into three
general categories: (1) procedures for organizations conducting criminal
record checks; (2) general prevention strategies for all child- and youth-serving
organizations; and (3) policies and procedures for state licensing agencies to
prevent out-of-home abuse.
Conducting Criminal History Checks
At this juncture, it is worth reiterating to readers that criminal record
checks are only a small part of good hiring practices. If a child- and youth-
serving organization is going to employ criminal background checks, whether
it's mandated by law or internal organizational policy, then it should do so
with (1) a thorough understanding of and compliance with appropriate state
and federal laws and regulations; (2) full disclosure to the applicant of the
screening procedure and purpose for which information will be used; (3)
written authorization/release from the applicant; and (4) strict procedures to
maintain the confidentiality of the record information (Long, 1992).
Additional recommendations pertaining to criminal record checks, as well as
child abuse and sex offender registry checks include:30
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■ Establish appropriate statutory definitions of institutional abuse and
neglect and clarification of rights and responsibilities of all parties in
given settings.
■ Separate the employment screening function from the use of the
criminal history and child abuse registry information as a diagnostic
and risk assessment tool.
■ Draft regulations and organizational policies on the appropriate use of
criminal history and child abuse registry information and develop
specific criteria for using these mechanisms for employment and
licensing purposes.
■ Provide an appeal process before an administrative law judge or other
appropriate party.
■ Establish an oversight committee to study, evaluate and monitor the use
of criminal history and child abuse registry information for employment
and licensing purposes.
Despite all the unanswered questions and concerns about criminal
record checks as a screening mechanism, Davidson (1985) concludes that
"criminal record screening is an important, albeit imperfect, weapon in the
arsenal which is available to the government and private employer to help
protect children from maltreatment in out-of-home care. . . . Coupled with an
effective pre-employment screening interview and scrupulous background
check of references, the well-publicized conducting of a criminal record check
becomes a device that should dissuade many pedophiles or other disturbed
people," from gaining access to children through a child or youth-serving
organization.
Developing Additional Prevention Strategies
A comprehensive background screening approach using the methods
discussed throughout this report is a good first step in selecting quality child
care and youth-service workers. But since screening is not foolproof in
weeding out individuals who may harm children, an organization should
consider adopting supplemental dissuasion measures. These auxiliary tactics
can take the shape of succinct and explicit organizational policies and
procedures. Ten of the more highly recommended actions to strengthen child
abuse prevention efforts include:31
/ Institute written organizational policies and train staff on identification
and reporting of suspected child abuse by employees and volunteers.
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/ Report all allegations of abuse by staff to the organization's national
headquarters, which may be able to help respond.
/■ Develop concrete policies for when an allegation of abuse is made
against organizational employees or volunteers (e.g., restrict their
contact with kids, deal with the problem immediately).
/ Train parents and children to identify inappropriate employee/ volunteer
behavior.
/ Require employees/volunteers to attend an orientation and sign a
statement that they have read and understand the agency's written
policies on treatment of children (e.g., discipline, management of
difficult behavior) and the state reporting laws.
• Increase parental involvement and communication; adopt an open-door
policy for parents to make unannounced visits at any time.
/ Provide educational programs on child abuse -- in particular, on the
identification and tendencies of child molesters - for staff and other
related community agencies.
• Inform employees and volunteers that the agency will cooperate with
local officials (child protective services and law enforcement) in
investigation of cases.
/ Advocate for legal and judicial reforms which ease the trauma suffered
by children who testify in court.
/ Have at least two caregivers on duty at all times, including early
morning and closing, to help minimize the problem that 80 percent of
abuse substantiations rely wholly on a child's testimony with no
corrobating information from other witnesses.
Increasing the Role of State Licensing Agencies
On a broader scope, efforts to protect children from out-of-home abuse
are not restricted to an organization's use of background screening methods
and establishment of internal policies and procedures. State licensing agenciest
too, can play an important role in preventing and responding to abuse in out-
of-home settings by facilitating interagency cooperation and promoting uniform
procedures. Some general suggestions offered include:32
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► Establish clear procedures for timely disposition of abuse cases,
perhaps employing a multidisciplinary team approach (as promoted in
intrafamilial cases);
► Implement a system for mutual reporting of complaints among
Department of Social Services (DSS) and child care agencies and
clarify investigative responsibilities and notification requirements
between involved agencies;
► Adopt clearly written policies on information-sharing among agencies
and implement mechanisms within and between states to track convicted
offenders and prevent their continued work in child care facilities; and
► Revamp licensing/registration laws to include minimum staff
qualifications; required reference-checking procedures; mandated
training; state regional office technical assistance; clear definition of
adequate supervision; basis for suspension or termination of
employees/volunteers; and authorization of fiscal penalties and/or
revocation of license. In revising these laws, particular consideration
should be given to eliminating existing exemption clauses so
licensing/registration mandates encompass all types of entities providing
out-of-home care or other services to children and youth.
C. Looking Ahead to More Effective Screening and Other
Prenention Efforts
Our review of the literature has confirmed the need for more thorough
analyses of screening methods. Identifying effective screening procedures will
obviously assist organizations in hiring suitable employees and volunteers and
protecting the children they serve. Systematic evaluations will also help detect
certain factors or problem areas that, if responded to, may result in
significantly different outcomes. Such analyses thus form the basis for
developing more effective strategies to prevent child abuse.
The Need for Cost-Benefit and Cost-Effectiveness Studies
Any future legislative or programmatic requirements must qualify
matters of funding and include provisions for cost-benefit and cost-
effectiveness analyses and other systematic evaluation procedures. With the
slashing of federal, state and city budgets - and the withering of private
funding dollars ~ government agencies, foundations and corporations, and
numerous service providers are all being forced to make more judicious
financial decisions. This necessitates comparisons among prevention strategies
to identify the most cost-effective methods and to specify which approach will
yield more benefit in reducing the many damaging effects of child abuse.
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Despite increased awareness about out-of-home abuse, systematic
research on the impact of abuse has not developed at the same pace. There is
minimal empirical literature to help guide the planning of effective prevention
and management of abuse (Gomes-Schwartz et al., 1990). Individual
prevention strategies (e.g., criminal record checks, parent and child education,
staff training) have not been compared to one another on a dollar-for-dollar
basis. In addition to cost-effectiveness analyses, cost-benefit analyses would
help address whether allocating scarce funds specifically to prevent out-of-
home abuse — instead of concentrating on abuse within the family — has a
greater impact in reducing the incidence of child abuse.
Current ABA Study on the Effective Screening of Child Care and
Youth-Service Wo r ken
As we conclude this report, readers are reminded that the purpose of
this literature review is to identify and discuss the more prominent issues
raised in the legal and social science literature regarding effective screening of
child care and youth-service workers who may abuse children. This review
serves to outline the framework for the current ABA Center on Children and
the Law study of effective screening of child care and youth-service workers.
With the support of the Office of Juvenile Justice and Delinquency Prevention
(OJJDP), we hope that our present research efforts will shed light on many of
the issues raised in this literature review. Through this on-going endeavor, the
ABA Center on Children and the Law seeks not only to provide insight on
what screening methods are available and currently being used by child- and
youth-serving organizations, but also to identify those methods most effective
in preventing out-of-home abuse. The final product of this two-year
undertaking, to be completed in June 1994, will include recommendations for
a national approach to screening of child care and youth-service workers,
which we hope can be readily adopted and implemented by those organizations
entrusted with the care of our children and youth.
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ENDNOTES
1. As part of the current study, the ABA Center on Children and the Law is
developing a directory of the various types of child- and youth-serving
organizations, complete with a listing of professions, jobs and volunteer
positions; the estimated number of individuals in those given professions and
positions; and the estimated number of children served. The directory will
serve to identify the potential universe of those who work with or around
children and analyze the degree of risk and accessibility to children in different
settings.
2. The average center-based child care program enrolls 62 children, with
enrollment ranging from fewer than 10 to more than 100 children. The
average family day care program enrolls 6 children, with about half caring for
fewer than 6 children and most of the remaining providers caring for between
6 and 10 children (Kisker et al., 1991).
3. At the beginning of 1990, there were approximately 80,000 center-based
early education programs, with an average staff size of 10-11, and 118,000
regulated family day care providers, the majority working alone and 40
percent using an assistant (Kisker et al., 1991). Unregulated family day care
homes alone may account for 60 to 90 percent of the total supply, meaning
there may be anywhere from 496.000 to over 1.9 million such homes (Hayes
etal., 1990).
4. Estimates for public and private school employees are based on figures
from the Digest of Education Statistics, J 992; figures on volunteers are
Volunteers in Public Schools (Michael, 1990). Staffing estimates for
independent schools are extrapolated from the National Association of
Independent Schools, whose membership accounts for two-thirds of all
independent schools, employing an estimated 73,000 to 74,000 staff (NAIS
Statistics, 1992).
5. See, e.g.. Daro, 1988; Fuller, 1989; Gomes-Schwartz et al., 1990; Groth
etal., 1982.
6. For possible offender characteristics, see, e.g., American Public Welfare
Association (APWA), February 1988; Boy Scouts, 1987; California
Association of Services for Children. 1987; Copeland and Haldopoulos, 1988;
Finkelhor and Williams. 1988; Fuller, 1989; Goldstein. 1987; Haddock and
McQueen, 1983; Lanning, 1987; Milner and Chilamkurti, 1991; Shaughnessy,
1984; Simon et al., 1992; and Wolff, 1982. For possible situational
characteristics, see, e.g., APWA. February and June 1988, August 1989; New
York State Subcommittee on Child Abuse, 1983; Rogers and James, 1991; and
Shaughnessy. 1984.
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7. The ABA Center on Children and the Law has sought to fill this gap by
conducting an in-depth supplemental study on the effectiveness of screening
practices in conjunction with the Department of Defense. This piece of the
project will provide concrete information on the implementation, results and
evaluation of background screening methods, in particular, criminal record
checks. The Department of Defense makes an excellent host for such a study
due to the law (P.L. 101-647) mandating screening of all employees in
federally-operated or federally-contracted child caring facilities and the variety
of settings (e.g., child development centers, schools, medical facilities, and
voluntary, recreational groups) in which DoD serves children.
8. See, e.g., Justice et al., 1985; Lauten, 1985.
9. See, e.g., Abel et al., 1987; Colorado Department of Social Services,
1987; Rice et ah, 1991.
10. Those readers interested in a more detailed discussion of criminal history
information systems may want to read the Office of Technology Assessment's
1982 publication, An Assessment of Alternatives for a National Computerized
Criminal History System.
11. In limited circumstances, employers may conduct nationwide screening
through the FBI without utilizing a state agency intermediary. To wit, certain
banking institutions, registered futures associations and nuclear power plants
may directly request the FBI to screen its files (Davidson et al., 1991).
12. Information on fees was obtained from the Department of Defense (1993)
and personal conversations with several state agencies responsible for
processing criminal record checks.
13. See, e.g., Davidson et al., 1991; SEARCH Group, April 1984.
14. There is a plethora of literature discussing the right to privacy. For a
general discussion of the federal constitutional right to privacy including
informational privacy, which Prof. Alan Westin (Privacy and Freedom. 1967)
has defined as "the claim of individuals, groups, or institutions to determine
for themselves when, how an to what extent information about them is
communicated to others," see, e.g., Cass, 1991; Grossberg, 1991; Turkington,
1990.
15. See, e.g., Turkington, 1990.
16. See, e.g., SEARCH Group, April 1984; Bureau of Justice Statistics, 1981.
17. Davidson et al., 1991 discussing New York v. Ferber, 454 U.S. 1052 (1982).
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18. See, e.g., the Bureau of Justice Statistics (BJS), January 1992; BJS,
November 1990; BJS, April 1989; BJS, November 1988a and 1988b; BJS,
1982; SEARCH Group, July 1988b; SEARCH Group, March 1983; SEARCH
Group, November 1981.
19. It should be noted that Title VII only applies to paid employees;
volunteers are not covered. Davidson et al. (1991) citing Smith v. Berks
Community Television, 794 F. Supp. (E.D. Pa. 1987).
20. See, e.g., Bates, July 1990; Cohen, 1985a.
21. See, e.g., ABA Juvenile and Child Welfare Law Reporter, 1992, 11:107
discussing Grimes v. Cavazos, 786 F. Supp. 1184 (S.D.N.Y. 1992) where the
state and city were found not liable under section 1983 because the intent to
discriminate was not alleged; ABA Juvenile and Child Welfare Law Reporter,
1991, 10:148, discussing Millspaugh v. County Department of Public Welfare,
937 F.2d 1172 (7th Cir. 1991).
22. SEARCH Group (April 1984) also discusses "public disclosure of private
facts," one of the four types of the tort invasion of privacy. The extent to
which this and other types of invasion of privacy actions have been the basis
for challenges due to inaccurate criminal record dissemination is unclear from
the legal literature reviewed.
23. Titus and DeFrances (1989) found that within the public schools, the
person(s) responsible for evaluating the impact of background information
were: superintendents (78 percent); principals; (33 percent); personnel
departments (27 percent); department heads (5 percent); general counsels
nprrentV srhonl hoards H nercenO and securitv offices (1 Dercent).
(4
aepanmerus (,z / pcrcciu;, ueparuucm ncaui yj pcucui;, gcnciai cu
percent); school boards (3 percent) and security offices (1 percent).
24. See, e.g., Davidson et al., 1991; Gordon, 1986-87; Morgan, 1984; Titus
and DeFrances, 1989.
25. See, e.g., Maney and Wells, 1988; Sale et al., 1988.
26. Information on state sex offender registries comes primarily from an ABA
Center on Children and the Law survey (February 1993) of Attorneys General
from the 50 states and the District of Columbia. Supplemental information
was gathered from a December 1992 draft report from the National Center on
Missing and Exploited Children (NCMEC); a February 1993 internal memo
from the Idaho Attorney General's Office; and a December 1992 report from
the Washington State Institute for Public Policy. The states that have sex
offender registration requirements include Alabama, Arizona, Arkansas,
California, Colorado, Florida, Illinois, Louisiana, Maine, Minnesota,
Montana, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, Oregon,
Rhode Island, Texas, Utah and Washington. Those states that have introduced
or drafted legislation include: Alaska, Idaho, Iowa, Kansas, Kentucky,
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Michigan, Mississippi, New York, South Carolina, Tennessee, Wisconsin and
Wyoming. In addition, several states collect DNA samples from sex offenders
after their arrest for profiling analysis. (South Dakota, for example, reported
it is in the process of cooperating with other states and the FBI to establish a
national DNA data bank to assist in the solving and prosecution of future sex
crimes.) Readers also may be interested to know that Wisconsin has
developed a nursing home assistants abuse registry to prevent abusive
assistants from future employment at any federally certified Wisconsin nursing
home facility. This register also covers employees and institutional aides at
facilities which serve developmentally disabled children.
27. For information on interviewing applicants, see, e.g., Ball, 1986;
Colorado Department of Social Services, 1987; Hoeltke and Ross, 1987;
Patterson, 1991.
28. See, e.g., Anderson, 1988; Carrilio, 1987; Murphy and Peters, 1992.
29. See, e.g., Broadhurst, 1986; Copple, 1990; Finkelhor and Williams,
1988; Staley et al., 1986.
30. See, e.g., Cohen, 1985a; Davidson, 1986a; Sale et al, 1988; Rutledge,
1992.
31. See, e.g., Baker and Collier, undated; Davidson, 1986b; Wolff, 1982.
32. See, e.g., Davidson, 1985; Kusserow, 1990; Russell and Clifford, 1987;
New York State Subcommittee on Child Abuse, 1983.
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Abel, G.; Becker, J.; Mittelman, M.; Cunningham-Rathner, J.; Rouleau, J.;
and Murphy, W. (1987). "Self-Reported Crimes of Non incarcerated
Paraphiliacs," Journal of Interpersonal Violence, 2:3-25.
"Abuse in the Nursery School - A License is No Safety Guarantee," Los
Angeles Times, April 2, 1984, 1:3.
Adams, G. (1990). Who Knows How Safe: The Status of State Efforts to
Ensure Quality Child Care, Washington, DC: Children's Defense
Fund.
Allred, S. (1988). "School Personnel Records: New Requirements for
Ensuring Employee Privacy," School Law Bulletin, 19:1.
Alexander, E. (1992). "The Right to Privacy and the New York State
Constitution," Touro Law Review, 8:725.
American Public Welfare Association (June 1991). Fifth National Roundtable
on CPS Risk Assessment: Summary of Highlights, Washington, DC:
Author.
American Public Welfare Association (August 1990). Fourth National
Roundtable on CPS Risk Assessment: Summary of Highlights,
Washington, DC: Author.
American Public Welfare Association (February 1988). Risk Assessment in
Child Protection: A Review of the Literature, Washington, DC:
Author.
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219
ELLEN MUGMON
S324 ELIOTS OAK ROAD
COLUMBIA, MARYLAND 21044
(301) 596-5538
September 7, 1993
The Honorable Don Edwards, Chairman
Civil and Constitutional Rights Subcommittee
House Committee on the Judiciary
806 O'Neill House Office Building
Washington, D.C. 20515-6220
Dear Congressman Edwards:
The Subcommittee on Civil and Constitutional Rights held a hearing on H.R. 1237,
the "National Child Protection Act," on July 16, 1993. I attended that hearing and
appreciate the opportunity to submit written comments on this important child
protection measure. I strongly support H.R. 1237 and commend you,
Representative Schroeder, and the other sponsors for introducing it However, I
believe the following issues must be addressed if children are to be adequately
protected by this legislation:
* The definitions of "child abuse crime" and "background check crime" are under-
inclusive. There are other categories of crimes that "bear upon an individual's
fitness to have responsibility for the safety and well-being of children." (Victims of
Child Abuse Act of 1990) Moreover, many serious crimes, including sexual
crimes, are often plea-bargained to lesser offenses such as assault and battery. In
my view, therefore, comprehensive checks are absolutely necessary. Please see the
attached relevant materials on SB 825 which was introduced during the 1993
General Assembly session in Maryland. Please note, in particular, the case
summaries. In general, limiting the scope of the crimes makes criminal history
record searches considerably less effective. It also contributes to time delays
because it hampers efforts to automate the criminal background check process and
because separating releasable information from non-releasable information is time
consuming.
■ Section 3, subparagraph (a) of the bill should be amended to include arrest as
well as conviction information. According to the U.S. Department of Justice in
1986, "Many [extrafamilial child abusers] have previously been arrested for violent
or exploitative acts against children - some a number of times. However, if they
have not been convicted . . . laws deny their employers or potential employers
access to their records." Consequently, "the vast majority of arrested child sex
abusers are able to go from job to job with litde fear that arrests in connect with
previous employment will ever be discovered by future employers."
220
■ Section 5, subparagraph (4) excludes the reasonable use of corporal punishment
as a means of discipline from the definition of child abuse. This exclusion should
be amended out of the bill for public policy reasons and because it is unnecessary.
There is no state where the reasonable corporal punishment of children is a crime.
Moreover, while it is evident that not all children who are corporally punished are
abused, it is also evident that the corporal punishment of children is not a wise or
safe practice or one, for that matter, that should be encouraged by the U.S.
Congress implicitly or explicitly. Please see the attached letter on SB 688 for a
further explanation of this issue.
• On Section 5, subparagraph (12), reference is made to a poverty exemption from
the definition of negligent treatment This exemption should be stricken. It is
inconsistent with the Child Abuse Prevention and Treatment Act and the federal
regulations and policies adopted pursuant to its passage. It is my understanding
that HHS has notified certain states that have this exemption in their laws that it
must be removed or the state will lose its eligibility for federal funds under the Act
You may wish to contact Madeline Nesse in the office of General Counsel of the
Department of Health and Human Services for more information.
■ During the hearing, the spokesman for the Boy Scouts of America commented that
the "focus of this legislation should be employees who have an economic interest in
their position" rather than volunteer organizations. However, according to Dr.
Gene Abel, a national expert who studies child molesters, "[the Boy Scouts have]
got a real problem on their hands . . . The Scout leader is not the only position that
a sex offender can take, but it is an ideal one for a pedophile . . . All volunteer
organizations are troubled ... by this same issue. The volunteer organizations are
just perfect for pedophiles." (See attached reprint of a Washington Times expose
on the Boy Scouts of America and a transcript of a recent ABC Television interview
with a Boy Scout official on this subject) Unfortunately, in my opinion, the Boy
Scouts of America have consistently chosen to minimize this serious problem,
rather than adequately screen its leaders. In this regard, please note the cases in
the attached materials in which child molesters with criminal records were able to
become Boy Scout leaders and subsequently harm children because their records
were not checked. Therefore, volunteer organizations, as well as other
organizations that provide services to children should be included in this child
protection measure.
In closing, thank you for considering my views. Would you please advise me of
any actions that are taken as a result of my observations? If you have any
questions, please do not hesitate to contact me.
Sincerely,
Ellen Mugmon
221
STATE OF MARYLAND
EXECUTIVE DEPARTMENT tlvQSQll
WILLIAM DONALD SCHAEFEH ""tSSLTCl?—
GOVERNOR
OFFICE FOR CHILDREN. YOUTH. AND FAMILIES
301 WEST PRESTON STREET BOOM 1502
BALTIMORE MARYLAND 2120'
rx>n229-Aiaa
TOD I30'i 333 309«
'AX 130" 333 524»
NANCY S GRASMICK SPECIAL SECRETARY
CMILOREN YOl/TH AND f AMIDES MOTCh 2, 1993
The Honorable Walter M. Baker
Chairman, Judicial Proceedings Committee
300 James Senate Office Building
Annapolis, Maryland 21401-1991
Dear Senator Baker and members of the Committee:
The Governor's Council on Child Abuse and Neglect strongly supports SB
825, "Criminal Background Investigations - Child Care Facilities," which
strengthens this important child protection and anti-crime measure by expanding
conviction information provided to government agencies and private employers. It
has become clear to the Council that the present list of offenses in this statute is
under-inclusive, especially in view of the fact that there are other categories of crimes
which "bear upon an individual's fitness to have responsibility for the safety and
well-being of children," (Victims of Child Abuse Act of 1990) and the law does not
require that a positive background check result in disqualification.
Consequently, there are individuals whose criminal histories indicate that they
pose a danger to children who cannot be deterred from, or identified after they have
sought or obtained positions of public trust which can give them access to many
vulnerable children over long periods of time. Nor can they be penalized for lying
about their criminal histories. (See attached case summaries). We also support
provisions in SB 825 which establish penalties for violations of the confidentiality of
criminal history information ar.l for the failure to require criminal background
investigations by those mandated to do so.
In 1985, when the Criminal Background Investigations law was first
considered by the General Assembly, the Governor's Task Force on Child Abuse and
Neglect, which drafted this child protection measure, limited the list of offenses
primarily because the 1985 proposal would have precluded the hiring of those
convicted of the specified crimes. In 1986, the year which saw the passage of this
legislation, the Task Force took an alternative approach, vesting the decision as to
whether or not to hire or license in the hands of the employers or licensing agencies
on the presumption that they would act in the best interests of children.
The Task Force also mandated criminal background checks based on
fingerprinting rather than name and date of birth checks, not only because the FBI
requires fingerprint-based checks (Fingerprints are now required for state checks as
80-609 0-94-8
222
well.), but because pedophiles and other aberrant adults "have been known to
employ aliases and falsified documents in their attempts to slip through screening
procedures." (See "Is There a Pedophile on Your Payroll?" by Richard Titus and
Carol DeFranccs, National Institute of Justice, 1990).
Moreover, there are many precedents in Maryland and other jurisdictions for
performing comprehensive criminal background checks. Individuals in
approximately 2,000 organizations in Maryland are subject to comprehensive
criminal history checks. Only child care workers in Maryland undergo a limited
check with regard to specifically listed offenses. Ironically, all public employers and
certain public licensing agencies, as well as certain private organizations have for
many years been authorized by COMAR regulations to receive full Maryland
conviction data. Furthermore, the Department of Juvenile Services requested
legislation which was enacted in 1991 which gives DJS the ability to obtain full
conviction information from the FBI because this statute did not prevent the hiring
of inappropriate personnel.
As of 1992, the last year for which a summary of this type of legislation was
prepared, 49 states have passed legislation regarding criminal background checks on
child care workers. The great majority require out-of-state checks in recognition
that this is a mobile society and that individuals can reside in one state and commit
crimes in another. Maryland, for example, is a small state which borders on five
jurisdictions.
Most states also detail the kinds of criminal histories that either must be
examined and/or prohibit employment. These range from convictions for any crime,
except a minor traffic offense, (Maryland criminal history information does not
include traffic violations) to convictions in special classes of crimes, such as crimes
against persons, and drug offenses. Some states also include admissions or findings
of guilt regardless of convictions, as well as arrest records. Moreover, Congress
passed the Victims of Child Abuse Act of 1990. which requires that employees in
federal agencies and facilities who provide child care services undergo a
comprehensive national criminal history background check based on fingerprints.
Under this law, some types of convictions prohibit employment, and all others may
be considered in the decision making process.
Even with the limited checks we have in Maryland, 156 persons in 1991, and
141 persons in 1992, with histories of murder, child abuse, rape, kidnaping, as well
as sexual and drug offenses were identified because of this law. Of those, 35 in
1991, and 39 in 1992 of those were picked up by the FBI check. It should be
noted that these numbers do not include individuals who have been identified under
DJS's separate statute. These statistics, however, cannot determine how many
individuals have been deterred by this screening measure from applying for positions
of public trust with regard to other people's children. Nor can statistics show all
those who would not have acknowledged their criminal histories in the absence of
the law. This deterrent effect is present, no matter what the time frame for the
return of the check, since the application process includes the completion of a sworn
statement. Thus, those who fail to disclose convictions or pending charges are guilty
of perjury and can be, and have been, successfully prosecuted. In any case,
applicants and licensees can begin work before the checks are returned.
223
Please note that the passage of this bill will decrease, not increase processing
time because CJIS staff will not have to take the time to separate out certain
convictions from others, as they are now doing. It will also decrease processing time
because it allows for the automation of certain procedures.
Nor does this legislation require anything more of child care workers
currently covered in the statute. Decision makers would only receive additional
essential information which would enable them to more effectively protect children.
This legislation takes steps to streamline the system and further protect children,
goals which those who provide services to children say they want to see
accomplished.
In sum, we agree with the conclusions of Howard Davidson, Director of the
American Bar Association's Center on Child Advocacy and Protection "that criminal
record screening is an important . . . weapon in the arsenal which is available to the
government and private employer to help protect children from maltreatment in out-
of-home care. A mandatory screening law suggests that as a public policy, people
whose backgrounds would render them clearly inappropriate to be placed in
positions of trust and authority over children will not be tolerated in the child care
system. Coupled with an effective pre-employment screening interview and
scrupulous background check of references, the well publicized routine of a criminal
record check becomes a device that should dissuade many pedophiles or other
disturbed people from entering into a child care or youth services position." We
therefore urge the Committee to give SB 825 a favorable report.
Thank you for considering our views.
Sincerely,
Ellen Mugmon, Chairman
Legislative Committee
224
FACT SHEET
CRIMINAL BACKGROUND INVESTIGATIONS - CHILD CARE
FACILnTES
SB 825
SUPPORT
Prepared by Ellen Mugmon
for the Governor's Council on Child Abuse and Neglect
Q. Why does the Criminal Background Check law list only ten kinds of crimes?
(Three additional categories were added during the 1991 session.)
A. The original 1985 version of the bill would have prohibited people with specific
criminal convictions from working in child-related jobs.
Individuals in approximately 2,000 private organizations in Maryland are subject
to comprehensive criminal history checks. Only child care workers undergo a
limited check with regard to specifically listed offenses.
Q. Why does the law need to be changed to include other crimes?
A. There are other categories of crimes which "bear upon an individual's fitness to
have responsibility for the safety and well being of children," (Victims of Child
Abuse Act of 1990) and the statute does not require that a positive background
check result in disqualification.
Q. Are criminal background checks constitutional?
A. Tou don't have the right of privacy with judicial proceedings of public record."
(Barbara Mello, Staff Attorney for the ACLU of Maryland in 1986)
The child's basic right to protection and safety overrides the adult's desire to
obscure his criminal record from scrutiny.
As of 1992, the federal government and 49 states, including Maryland, have
enacted legislation regarding criminal background checks and child care workers,
recognizing that employers, licensing agencies, and parents have a reasonable right
to know whether or not people to whom children are entrusted on a daily basis have
criminal histories which indicate they pose a danger to children.
Q. How can SB 825 help to further protect children in Maryland?
A. The attached summary of cases describes children who would have been
protected had the criminal histories of their caretakers been known and
demonstrates why the list of offenses in current law is under-inclusive and why
employers and licensing agencies presently do not have sufficient ability to exercise
necessary caution when selecting individuals for position of public trust with regard
to other people's children.
225
CASE SUMMARIES - SB 825 - SUPPORT
Prepared by Ellen Mugmon
for the
Governor's Council on Child Abuse and Neglect
In 1989, Linda Johnson was arrested and later convicted in Washington, D.C. for
murdering a nine month old baby under her care. She had slammed the baby's head against
a wall numerous times because the child would not stop crying. Police also discovered,
after sending her fingerprints to the FBI, that she had a long arrest and conviction record
in Louisiana, which included forgery, and burglary, as well as arrests for criminal neglect
and armed robbery. (The Washington Post. "Ex- nanny Had Record Before Slaying,"
February 2, 1989) None of her prior convictions in Louisiana would have triggered a
positive check under the present statute.
In 1988, the Juvenile Services Agency unknowingly hired a convicted felon as a
supervisor at the Boy's Village in Prince George's County. During his employment
there he helped four boys to escape from the facility. He had spent more than ten years
in prison for robbery, burglary, and receiving stolen goods. JSA officials were unaware
of his past criminal history, even though he had undergone a criminal records check
because the crimes for which he was convicted are not included in the statute. (The
Sun. "Agency Screening Can't Spot Felons During Hiring," February 26, 1989). While
DJS can now screen this individual out, because of the passage of a law in 1991 to
remedy this situation, other child-serving organizations cannot.
In 1989, New York attorney Joel Steinberg, was convicted of first degree
manslaughter in the notorious beating death of his illegally adopted daughter, Lisa.
Incredibly, Steinberg and others like him can pass a Maryland criminal background
check.
In January 1988, Martha Guba, a family day care provider in Virginia, was
convicted of felony child neglect. She had given a six month old baby an antidepressant
to stop him from crying. The baby died as a result. But it was not her first crime.
Police found, after sending her fingerprints to the FBI, that under six different aliases,
she had been convicted in two other states of larceny, vagrancy, disorderly conduct, and
grand theft, as well as the neglect of her own infant children. (Washington Post, "Girl's
Death Highlights Need for Home Day Care Regulation," January 17, 1988). None of
these convictions, even the ones for child neglect, would have engendered a positive
criminal background check in our state.
A cult leader and several of his followers were indicted for conspiracy to deny the
civil rights of 29 children who they allegedly held in involuntary servitude in Oregon
and California. Their alleged acts culminated in the beating death of an eight year old
girl. (The Sun, "Eight in Group Accused of Enslaving Children," February 9, 1991).
Again, there is no reference to this type of crime in our law.
Diane Jones was convicted in Baltimore in July, 1992, of battery for assaulting
two disabled patients in a Catonsville nursing home. Jones was "forbidden to work with
226
senior citizens or children" by the court. Nevertheless, she can pass a criminal
background investigation in this state for child care workers, since battery is not one of
the listed crimes. fThe Evening Sun. "Nurse's Aid Jailed for Assaults, July 28, 1992).
In 1969, George Slater was charged in the District of Columbia with first degree
burglary, sodomy, rape, and robbery. He pled guilty to the burglary count, and the
remaining charges were dismissed. In 1970, in Montgomery County, Slater was
charged with assault with intent to rape, assault and battery, robbery, and larceny. He
pled guilty to larceny. All other charges were dismissed. Mr. Slater could pass
Maryland's criminal background check law and work with children. (See Carolyn W.
Cramer v. Housing Opportunities Commission of Montgomery County, 1985).
In February of last year, in San Francisco, a television station exposed a meeting
of a pedophile group, the North American Man Boy Love Association, which had been
holding its meetings at a local library. Its spokesman, Alan Davis, told reporters that no
one in their organization had ever been arrested. But it was later discovered that his
real name was Nicholas Alan Palmer, and that he had been previously convicted of
soliciting sex from a nine-year-old boy. (See Washington Tunes, Pedophile Group
Shakes Up City," February 10, 1992). Mr. Palmer is an example of why criminal
background checks based on fingerprints are necessary.
A Baltimore County mother who left her two young children home alone was
convicted of reckless endangennent in connection with their deaths. (The Sun. Mother
Admits Reckless Endangc-ment," March 20, 1992). Since reckless endangerment is not
one of the list of crimes, her conviction would not be picked up under present law.
Dennis Miller, a Virginia elementary school teacher, was convicted of assault and
battery for fondling a student. Local school systems in Maryland would never find out
about his conviction in Virginia should he apply in Maryland for a teaching job. (The
Washington Post, "Manassas Teacher Convicted of Fondling Student," July 3, 1992).
An 18 year old Washington man was convicted of assault with a dangerous
weapon in the severe scalding of his 6ve month old daughter. fThe Washington Post,
"Man Guiltv in Scalding," January 27, 1993). His conviction would not engender a
positive check in Maryland.
A 33 year old Westminster man who kicked his five year old son down concrete
steps, severely injuring him, could also pass a criminal background check in this state
because he agreed to plead guilty to battery instead of child abuse.
A twenty year old Fairfax County babysitter, Jennifer Salas, was convicted of
involuntary manslaughter of a seven-month-old Virginia boy. Salas had thrown the
baby into a playpen, cracking his skull. (The Washington Post, "A Nightmare Come
True," June 13, 1992). Ms. Salas' conviction would be missed under current law.
A Howard County camp employee was convicted of molesting several children
under his care. He had been previously convicted in Virginia of assault and battery as a
result of a sexual child abuse complaint. His prior out-of-state convictions would not be
picked up under present law.
227
STATE OF MARYLAND
EXECUTIVE DEPARTMENT
WILLIAM DONALD SCHAEFER
GOVERNOR
1
OFFICE FOR CHILDREN YOUTH. AND FAMILIES
301 WEST WESTON STREET ROOM ISO?
BALTIMORE MARYLANO 71201
I30'IZ««I«0
TOO 1301) 333 30M
FAX (301 1 333 ««
NANCY S QRASMICK SPECIAL SECRETARY
CHILDREN. YOUTH. ANO FAMILIES
March 2, 1993
The Honorable Walter M. Baker
Chairman, Judicial Proceedings Committee
301 Senate Office Building
Annapolis, Maryland 21401-1991
Dear Senator Baker and members of the Committee:
The Governor's Council on Child Abuse and Neglect strongly opposes SB
688, "Child Abuse and Neglect - Corporal Punishment," which excludes the
"reasonable use of corporal punishment as a means of discipline from the definitions
of child abuse and neglect." We oppose this bill for the following reasons:
1. Current law already permits parents to corporally punish their children, and to
physically injure them when doing so. Only physical injuries which occur as a result
of cruel or inhumane treatment or malicious acts "that indicate that the child's health
or welfare is harmed or threatened" are prohibited in Article 27, Section 35 A, and
only those physical injuries of a child that "indicate that the child's health or welfare
is significantly harmed or at risk of being physically harmed" are considered abuse in
the Family Law Article. Thus, in our view, these statutes create a high threshold in
defining the physical abuse of children. Please note that many other states' statutes
define physical abuse as non-accidental injuries for the purpose of reporting with no
other caveats.
2. Hence, the right to corporally discipline one's child in Maryland has been and
continues to be a defense to what would otherwise be an assault and battery. It is
further justified under the label of "Domestic Authority." According to the Court of
Special Appeals, in Anderson v. State, this privilege remains with regard to children
"although other and earlier exercises of domestic authority involving relationships
such a master-apprentice and husband-wife have been relegated to the dustbin of
history."
3. Notwithstanding the acceptance of physical punishment of children in our laws,
research on this subject shows that the approval of corporal punishment of children
has "important implications for the understanding and prevention of the physical
abuse of children .... Although most physical punishment docs not turn into
physical abuse, most physical abuse begins as ordinary physical punishment ....
228
Moreover, being the subject of physical punishment trains future parents in the use
of violence" rather than in alternative disciplinary techniques which are far more
effective. Studies also "show that the more physical punishment that parents
experience as children, the higher the proportion who engaged in abusive violence
toward their own children and their own spouses, and the more parents used
ordinary physical punishment, the greater the percentage who were worried that
they might get carried away to the point of child abuse." ("Physical Punishment and
Physical Abuse of American Children: Incidence Rates by Age, Gender, and
Occupational Class," in Physical Violence in American Families by Barbara
Wauchope and Murray Straus, 1990).
4. Furthermore, public opinion is consistent with research findings. According to
the National Committee for the Prevention of Child Abuse 1992 public opinion
survey, the vast majority of respondents felt that "physical punishment is detrimental
to a child's well-being, . . . and only 20% believed that physical punishment never
leads to injury. Clearly, the physical punishment of children is a significant part" of
the explanation for the high rate of physical abuse of American children (Wauchope
and Straus).
While it is evident that not all children who are spanked are abused, it is also
evident that the corporal punishment of children is not a wise or safe practice, or
one, for that matter, that should be encouraged or touted by the General Assembly
implicitly or explicitly. In any case, parents who discipline their children in this
manner are more than sufficiently protected under present laws designed to protect
children. Consequently, there is no need for this bill. In essence, it is redundant.
We therefore urge the Committee to give SB 688 an unfavorable report.
Sincerely,
Ellen Mugmon, Chairman
Legislative Committee
229
Scouting's sex abuse trail leads to50 states
Bv Pamc* Bovw
For parents, the local Boy Seoul
troop u a safe place to send the kids.
For child molesters, its an ideal
place to meet them
The result: on an average of more
than once a week for the past two
decades, a Cub Scout. Boy Scout or
Explorer has reported being sex-
ually abused by a Scout leader
An investigation by The Washing-
ton Times shows that at least 1.151
Scouts have reported being abused
by their leaders over the past 19
years, maJung sex abuse more com-
mon in Scouting than accidental
deatns and serious injuries
In that time, at least 416 men have
been arrested or banned from Scout-
ing for molesting the boys in their
care— and experts say the real num-
ber of abusers and victims is prob-
ably several tunes higher.
Those are among the findings of an
investigation that rurned up abuse by
Scout leaders in all SO states and the
District of Columbia
"1 was naive to think the Boy
Scouts was such a safe place.' said
the mother of a Maryland bov abused
by his Scoutmaster "1 thougnt the
Boy Scouts was a sanctuary'
In fact, the examination of sex
abuse in Scouting reveals a long-
standing paradox for the naoons
most revered youth group: for 80
years the Boy Scouts of America
have given boys some of the best ex-
periences of their lives, but for SO
years some men have used the Boy
Scouts of America to have sexual re-
lations with those boys.
"That's been an issue since the Boy
Scouts began." said James Tarr. the
nations Chief Scout ExecuDve from
1979 through 1984
The Scouts say the number of
abuse cases is low considering ail
their volunteers. They have alio
taken steps to fight the problem.
The Times examined the problem
by reviewing internal Scout records
and tens of thousands of pages of
court records from around the coun-
try, including confessions of molest-
ers and testimony from children; by
interviewing molesters, families of
victims. Scout leaders, sex abuse ex-
perts an J awyers: and by analyzing
the cases on a computer database.
Among the findings
• Each year from 1971 through
1989. an average of at least 21 male
Scout leaders and camp workers
were banned from Scouting -or ar-
rested for sexual misconduct with
Cub Scouts. Boy Scouts and Explor-
ers The acts ranged from proposing
sex acts and fondling boys in their
sleep to performing oral sex and in-
tercourse with the children,
• During that tunc an average of at
least 60 Scouts were reported abused
each year, with some of them abused
dozens of tunes before telling any-
one. Experts and Scout off icuus say
those figures are probably a fraction
of all the abusers and victims, since
most child sexual abuse iszrt re-
ported and most abusers arem
caught
"1 would guess that tne number of
actual cases is even far greater than
that." said Anne Conn, director of the
tet ABUSE, pap 2
*•>-■; v . "... \iffm „"««•:
■- Evwy day. cornrnunrtws ail ow
its* country bi b sornenow touched
by to* pood votkj of the Boy £T
Scoua of America. And every ■ *V»
day. cfttfnxi in comrnuruba* «l '\
over the country go through the *£.'
haror of sax abuse. For many t* V
people, the Scouts are supposed
to be • haven from such honors.-**
> From May 20-24. 1991. The l"Jpt:
- Washinoion Times ran a five-part -
senea about sex abuse In the Boy "
i 'ABOUT THte REPRiKnr :B§^"
Seouu at An»nca-;The eert«s, **\n every sate and the Distort cl motastere. how they seduce t
csied "Scouts tttpgCgjomi" — -ColUmWa.-AI ■ tone when the" Boy" how the abdsraflectaTStBoYirii
how child molesters wrfhe .f ... . Scouts, ol ^mencs win saying; • J.»and hewthe mjsttr—
country's most populacyputh fe? ithiy had two to 10 reports ote«->.V responded, to the*
organization totjjve eexwlth Sk'- abuse each year, this protect.: ■ „ are tales about the boy v
children.. -lZ&3*&££?s'o? bund that over tne past.1 9 years.,* rwnsetf after being abu»
. LThts protect began witji •>»*)»«. at leasMi e Scout leaders have ■<•■ ■-. man who may be tne most prolifi
lawsuit by a vlrginiaiby jfro had ." been accL-sed,rtnx>teglnoTrore^kmctestef.lriscotang, the S
been moiestea by rus'Scput . v«Er - than 1 v000 Scouts. rviisSiiji^ >-^l'. leaders'who uied to keep «
leader. It grew into a six-monffr-t*', The senes includes 34 stories.'*-'--' cases quiet and the experts whoj
mvwooaoon that uncovered /-33>- plus' graphics, mat show'why -• ^U .developed a program to curbjjj
reports ol abuse by Scout leaders. Scouting is so attractive to ' ." iCS ■■ abuse. <*W.rwi$ti»
^'SsBSEs'SsSfJ
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Thl* transcript has not yet btco chocked against
videotape and cannot, for that reason, bo
guaranteed aa to accuracy of speaker* and spelling.
(JPM)
DAY ONE Transcript #115
June 14, 1993
FORREST SAWYER. ABC Newe: Gcod evening. I'm
Forrest Sawyer and thi* <a D«y On* Tonight, a Day One
investigation reveals a secret about the Boy Scouts of
Amanee
FORMER DELAWARE SCOUT Ke liked little boy*
I wee a little boy.
SAWYER: ivoiat-ovtr] Day One uacovsrs Tiles that saow
for rlsnarias the Bey Scouts have known scout troop leader*
who molest chiHren.
BlJkJCZ LEWIS. Bey fleouts Spokesman Oa* ceae
is one too many.
SAWYER: Well. then, you v* pot iibmi ■ hundred on
average a year. That's s nundrec time* worse problem.
. ueioe over) TVoy still don t «uii you to uiw about tt.
KEN LANNING, FBI Pedophile Expert: There s no
human being tntinr to acdueo than on edoieeoeBt boy.
FORMER DELAWARE SCOUT ! m*an. I have three
children myeelf. and I wouidn t even have them in the
Boy Scouts.
SAWYER: Ivo-.ofOtMTJ Juauc* la America: whs can afford
it?
MAN The only way you can have -ustic* in America ia
if you hare money.
SAWYER: (uoxx-ovtrj And if you don't, you get a public
defender, fighting a system that's falling apart.
RICK TESBTER (till. I *-o to court nrery day facing
overwhelming odds.
JOHN HOCKENBEHKY, ABC Newe: WW, wwuld
the founding fathers aay about the system?
Judge CALVIN JOHNSON: They would be absolute-
ly appalled.
SAWYER: (voie+ootr) Alto tonight, they're powerful, ter-
rifying, deadly. Most people run away from tornadoes, but
this man runs after them.
WARREN FATDLEY. Photographer Dave's the
Terminator" of norm chasing.
SAWYER: (vo*e*-ov*H Tonight, the storm chaser, on the
road in search of tne perfect tornado.
ANNOUNCER: From ABC New*. Forrest Sawyer. Sheila
MaeVicar. John riochen berry , Michel McQueen. Jay Schad-
ier. and John MrKsTiri* this is Day One.
[Commercial brtaM]
Be Prepared
ANNOUNCER: D«y On*, with Forrest Sawyer, con-
tinue*.
FORREST SAWYER: We begin tonight with a stccy that
could touch nearly every family in America and anyone
who's ever put on a Scout uniform. First, listen to this let-
ter the Boy Scouts of Amino wrou to us. It says, The
Soy scouts r.as been tne cataiyat for much of the aware-
ness and discussion of child acuta that has emerged in
recent years.'' It is true, tna Boy Scouts have maae en ef-
fort to educate Scouts and their parents about the oangvs
of child abuse, but that'e not tne wnole truth A four -month
Day On* lnveaugation has reveeled that, for most of this
century, the organization has kept secret files en hundreds
of troop leaders scruseci of being periii|i~iiia* child
molesters. But even though they knew they had this prob-
lem, the Boy Scouts chose to do little shout it. In fact, they
kept the truth from fsmilies who put then- trust in tne
scoutmg tradition.
(Boy SeoutM promotional vidto)
HENRY FONDA: When you help start a scout
troop, there* no guarantee one of the boy* grow up
to be an actor.
ASTRONAUT: Co to the moon, twtos.
HENRY AARON: Hit 755 home runs.
Pre*. GERALD FORD: Grow up to be president
But you never know.
SAWYER: lvoxc*-ou*r) It I part of the American dream.
to be a Bov Scout, to *w*ar to be physically strong and
morally straight, to issrs to stand up for what you be-
lieve in. Every year, four million bova share the dream
that for a few of them, it will become a nightmare, the
Boy Soouta of America is a target for pedophile*.
KEN LANNING. FBI Pedophile Expeat: I think the
Bay Scout* is on* of many organizations, in my opinion,
whicn is potentially highly vulnerable. There is no hu-
man being on th* face of the earth easier to seduce than
an adolescent boy in his early teens. They hsve an ease
of sexual arousal, they're curious, theyr* exploring
their aexuality. On* of th* things that you're always
wnrbing tnwnirla is gatnng tha child tn have tn ehang*
clothing or spend th* night with you. The Boy Scouti
give you that opportunity, you take overnight hike*. An
other thing about the Boy Scout* ia that it provides i
t—»*»'-[ nsthsauB which thee* offenders always need.
SAWYER; [voicr-ovtr] The Bay Scouts of Amenc
mien child mnleetatwn is a problem, but they say the:
only became awsre of it in 1985. after one alleged ess
made national headline*.
(inurvuwuig] Were there no significant problem* iz
side she Boy Scout* before 19837
BLAKE LEWIS. Boy Scouts Spokesman- Not thi
we're ewere of. no.
SAWYER: None at all?
Air. LEWIS: Not that we're ewer* of.
SAWYER: In fact, the Boy Scouts' own confident)
records, obtained by Dsy One. show they've beam ewe:
of the significant problem inside their own argnnuatx
fox dorados. The eecrct files, from the year* 1071
1991, show th* Boy Scout* banned ever 1.400 peopls f
abuse or suspected abuse. The file* shew that abuse
served for years without being detected, and whan th
were BSsasjM ilia Suuuis eugsged in ooveruue to ke
their imaged* as.
(voux-ovrrj Shortly after it* founding in 1910. i
246
Bey Seoul* of American oeean aaeou-.g the confriennn
file* They were to eerve as the WIMI ceanng r.cue*
of people who ahould cot be u»w in. EacE d*»
voirniiori nimt w*a to be cheeaed agamot the file*,
and anyone "UTn'trH ■* ai *.o be i:*tea to prevent aim
from rejoining. Our inver.ifit-.cr. bona thii ryrtex »••
l- from : » _mj •
"CARL B': I'm very th.-u.ed ibout the fact that,
throughout sty toouting. 14 vein of eooutina. there
wen 18 lag.**, young men :n»t made Eagle while I
wet either ucRiat eeouimaiier or icouttti liter.
SAWYER. .Loiof-oiwr/ Cert B.. a eonvjeiac pedophile
who agreed tn talk tn ua if w* didn't um hu laat neme.
Carl'* aerving SO yean m e Virginia pnaon. Before tnau
-• wiv»d m :".vf niff»r»n: eonui '.roope. If hu firet troop
id Wilmington, Delaware had enecked Car. a Sivy
record, they mey n»vr Uamari -,» wu court-martialed
6* moieaung young ooy*
,'OmpAic "Genevo/ —inrr.m/irfini i/iaranu
.inemu-.V
SAWYER You bed been reieeeed rrwn Mae Navy fnr
feaniei ehuae
-CARLS*: Yea.
LAWYER; 3id you worry that wnen you applied to the
Boy Seouu that the Bey Scou'.e might put the** two to-
rrtner. might come up with that fan''
•CARL B": I dent thick it occurred to me It turned
out not to be a problem.
SAWYER. They didn't cheek?
•CARLB': They didn't eheei
SAWYER. ,\-ete*-ov€ri Over :n: couree of a year. Carl
■nmtrtfi eeveral boy* When one of them finally told hie
>choo> pnaupao. Carl *u allowed to quietly loeve uwn.
FORMER DELAWARE SCOUT Ke liked hitle boy*.
'. wee e little boy, and he dad whatever he had to to
make that work. He a a lick trade.
SAWYER Were yuu efnud u." proeecuuoc?
•CARL B" He, at the v.m* 1 waeM. It waa kind of put
under the rug, nobody oeali »uh ...» .»»•.
WYER; ,'peaae-ewer/ And nooody dealt with the
:rtuaa Buffered by the cnildren^jiittei.
FORMER DELAWARE SCOUT. It bun me. It hurt
me bad, 1 mean. I have three children luywmll aud I
wouldn't even have them in the Boy Scouts.
SAWYER; If there is as alleged instance of child uu»
reported, ia it true that the Boy Seouu of America L-
wire contact law enforcement agenctee?
Mr. LEWIS. Ye*. That'*— thaf i the practice.
SAWYER: in every emgle mrtance thi* baa been true?
Mr. LEWIS To the beet of my knowledge, yea.
SAWYER: So yon now of no tinge injury any-
where, a Boy Seouu leader ha* aimpiy left the troop,
gone to iivr-— ' place, eomeume* without the parent*
even being tald?
Mr. LEWIS To the beet o: ay knowledge, any time
we've become aware of * eitu alios, it* going to be
reported. It'i pong to be reported to u* eunreement of-
ft~.u That tndrndual'i ngiatration u going to be die-
eanonued and theVre going to be placed into the u>
eugihlo volunteer file
SAWYER .coict-oixrj I; fact. Lan o. wu never
reported to the police anc .-.;i name »u not ended to
the natlonaJ heedquarur* confidential fUem. ao Carl
waa able to move tnrougn tnree other Boy Scout troop a.
from Connecticut to Rhode I aland. e.w*y* appearing to
be the perfect acoutmaeter.
PARENT OF FORMER SCOUT 1 would ear not only
waa he chanrmeuc and a good eeout leader, he put thi*
kind of dedication into anyuung that he did.
Mr. LANMNG: People think of ■*'■* mok«.uri a*
bemg evil, hnmbl* people, and thi* guy euu nil graa*.
and work* hard on the job. and he goae to church on
Sunday. He aeemingiy coeen t have any of theae other
•j-tita and cnarecterurue* that we would laeotify with
aomecody a* evtl aa a child moi eater
SAWYER: Ivovwoutr) By i960. Carl had a bono on
•ha weter in Bamngton. Rhode I aland. He ukee to uke
an Seouu out on hi* beat. The oovr parent* had grown
totruat him.
PARENT OP FORMER SCOUT: The night before
the i -indent with my aon. actually Carl came to my
luaiaa. aat at my table, ate cur -'"*»'»*« m my living
room piayed my organ, tang with my children, and th»«
the rxnrt day attempted to moiert them.
FORMER RHODE ISLAND SCOUT My ftrn un-
eaey feeling with him it when we went iwimsunf »^^
he wanted everybody to akavry-drp, and I waint— 1
Aidnt— I »nm tnut thet at all. And loeijlailj juat
took off their nathmg *uha and went mnmoi, and I
-jrt walked off
SAWYER: ,';. oicf-oK- ' Mentha laur, Carl took a man
direct approach When ne wee rejected. he> wermwl thi
boy not to yl V
FORMES RHODE ISLAND SCOUT He eaid. *Don'
mentwri this to anyone. No one will belie** you." It'
•»-err mtrmumtme,
SAWYER: /i>ote*-ev*r; Bat he did tail hie father, wh
called the poliee and the Boy Scout trorp c
PARENT OF FORMER SCOUT. The
though* that Cerl wee the bee* thing te eoeae M *ow
laoe atnee ice cream, and I earn* bete* the eommt
tee and it w«a uke 1 waa ee triaL We ■■» eeneaderi
wrong in thia.
V' SAWYER. You muet have been a heak ef a eee>
1 eerier, beeauae you were charged with eight count*
eaomal aUw uf children and the tree*) mmmnm. ye>
troop *w""y>TT rallied around you 100 percent, did;
believe a word uf it,
"CARLB": That i true
SAWYER: And they were convinced yea were bel
railroaded.
•CARLB*: Ye*.
SAWYER: Until you pleaded guuty.
■CARLB": Yea.
SAWYER: ,'twtcr-ovrr7 Carl waa eenueoed u f
yean' pro of job and he moved out of Rhode lalaod.
tried to Ray *way from boy* and tried therapy, bu
few yean Uter he was back, applying to bo a Boy So
247
leader u> Restoc. Virginia.
rintmuwingj You have left * trail of tu*p*eted and
admitted child abut*. You cave been ccnvicjao of enild
ahuse. And you applied to a Boy Scout troop.
"CARL B" Yea. I All out the application in Ration. I
ruiad rt :n ebaoiutaly honeauy. 1 lifted Rhode ft lend. I
listed Connecticut In fact. 1 might have even listed De-
laware.
SAWYER: You wan pretty convinced that they'd catch
up with you at the outset.
"CARL B" Yea. And when it didn't happen. I figured
just the raverae, is that they had looked and said. "He
want through therapy, in not a prenlem. it's not going
j> happen again."
SAWYER: You're iying u yourt*lf. you're doing ail
aorta of things, but really, you anew.
"CARL B" Try to undareund. The allure of the scout-
ing experience, of doing ail of the potitiva things that I
had done in the part for young people, was awfully, aw.
fully pewarfui. I knew that I had this touch of being
sbU to mount* people and get them to help than- can.-
dren, and get involved with the troop, and have the
young men grow and mature.
SAWYER: Didn't you remember wnat you did to those
people in Rhode island?
"CARL 8": I — you're got to remember that I did not
think of that. 1 couldn't. If I started to think of that, it's
psmfui. it hurts made, it eonffrms that I'm terrible.
You scuff the feelings away, you rationalise them awry
and lay, "It's not going to happen again."
SAWYER: ivctexutr) But it did happen again. In
'.984. Carl waa convicted on five counts of sexually
abusing boys in his Reaton scout troop, and ha began
serving his prison term.
The Boy Scouts' eonfldantial files show Carl la not
■ions. Other convicted child molesters have managed to
become scout leaden. Erie Patrick Avant lap?/ eon.
vtctad of actual abuse in 1979. ha became a afloutmaatar
ic 19M. Richard fl****1, a convictwfl fnr aenial abuse m
1964, a scoutmaster m 1981; m 1983. toe troop kicked
him out tor malaatmg bny*. hut the Roy Scouts at abin
ica never turned him in to the polios. He was finally ar-
rested in 1M1 for molesting his feetar ehud. tv~,f>"
Birney (ipfl: eocrrictad in 1976 of sexually abusing a 15-
yoer-old Explorer Scout in Maaaacaueecta; by 19s* he
was with another troop in Pennsylvania, and two yean
later, another eoavietiea. Themae Heaksr of Ulinoia-
charged with abuamg scouts in his troop in 1961, but ha
didn't go into the file until 1970 and. 16 yean laser, he
triad again to become a scout leader and a routine check
failed to turn up his name and he got baeat in. Hacker
waa finally arrested m 1988 and. by that time, poiios
raeveluded be had ahiitea aute than 100 shidroa.
/en uiwamV Expert* tell us child moi attars often
rationalise their heihaTinr eonvinemg themae Wee that
the children are parity responsibla for what's happen-
ing. What is man ■■——■»' is thst sttorney* for toe Boy
Scouts hava used the same argument when victims de-
cide to sue. and una 1M1 lite Buy demits here been
sued over 60 times, with the crginnennn agreamg to
pay out more than 815 million in damages to vutime of
sexual abuae.
{inurumvinsJ In the court ease* whan the Boy
Scouts of America hava been brought in as defendants,
sttorney* hev* blamed boys for keeping their abuae by
scout leaden secret, in one ease ssyma a boy should be
held partly responsible for not reporting the abuse
sooner, in another ease aaking a hoy on whether ha en-
joyed oral sex with an adult. Why were the boys treated
this way by your own attorney*?
Mr. LEWIS: I've heard that language from plaintiff*'
attorney*, yea.
SAWYER la it not true?
Mr. LEWIS: 1 don't— I can't **y that that's true or
not.
SAWYER: Aaking a bov if he enjoyed oral aax with an
adair?
Mr. LEWIS: I certainly hava not seen any of that.
SAWYER: Would it surprise you to know that your
own attorneys did it?
Mr. LEWIS: I can't (peak to what has been aaid In the
courtroom. Thet'e not my ana of expertise.
SAWYER: Would it surprise you?
Mr. LEWIS: I guest my feeling la yea, ir would be a
surprise.
SAWYER: Ivoict-ovtrl In 1988 the Rny rVouu of Aaaer.
iea Initiated three policy change*. Their Soy Seou
Handbook now eames with a nrw pamphlet, addressed
to parent*, that discusses the problem of sexual abuae.
They elao produced twr» videos for Bey Seeute end Cub
Scouts. The boy* do beer about the danger* of aexual
— tbuae. but eanut (aeiiaee are peyvr_d«pj«adas_shuaefe.
ACTOR: [mA Tim* io fiSV I know the •eon. At
Uaat. I thought I did. than something weird hap-
pened to me.
SAWYER: .'»«»o»-i Alao in 1988 the Boy Beauts
altered their application form. It now inchkdee the ques-
tion, "Have you ever been charged with ehfld eeejee* or
abuser The file* clearly demonstrate aa obv-ou* fact:
.-^itiao/oiaeuigy Isth'ere a eheck on that statement?
/Bar. LEWIS: Agaiaw it'a difficult to cheek the*. Rules
vary from state to state. There are actually tome place*
\ when it is illegal to get en iaveetigatian en a person »
criminal background.
~~8AWTERj But why dent you require it, when you cau
require K? _
air. LEWIS: 1 dan't know that I can aay why a group
daea or doea not. ~
WYEB- In ether wvda, the national orgsniiaiii-n of
Boy Scoot* of America does not preee ha locals to have
■aadaterr hei ■gnwnni check*? It allow* Uw losala to
make thoee doosxmt?
Mr. LEWIS: It cent be required eeroaa the board.
SAWYER: /iwise-oner/ The Boy Scouta of America it
alao trying to train tta troop leaden wnh *nn>her video
that lay* down tpecrfie guideline*, what behavior i* in-
appropriate and how to recognue potential arrntet*.
A*
248
2nd ACTOR: [Boy Scout irmninf iidoo) Additions)
information about child moitnin n included in your
program pscssts.
SAWYER.- ; poiee-ovrry But for ill thtir educational ef-
forts, the national headquarter* has cstahliahori no
tystem of rnmrmf (ura troop leader* actually fo
through training. Even though by 1988 the Boy Sooute
had an addition to their Handbook, educational video*
for the boys, guideline* for volunteer* and employ eee,
and a new application, the confidential file* enow that
pedophile* here roll managed to become aeout lenders.
Richard 9ung*r. suspended from scouung in the early
70a, allowed beck is on probation— not until 1980 was
Stinger arretted and eonnctad of actually abusing
scouts in his charge. James Burton and Darid Reed
[ipf], convicted of child mo testation is California they
got around "the rule' requlrini two aau.t iaau*ia at ail
~eenvitie* by forming their own aoovt troop. The eon*
fldenual ffle* ahow that, over a 10* month period in
1988, they molested mere than 30 chi.dren. And Rodney
' Almost /«p?7. convicted last year of four counts of child
sexual ibu— just monthi before his arrest, be we*
giving miau siaas about his camp program.
RODNEY ALMONT: I think, for the most pan,
they're left with a \rr. M msmnrwe We hope that
they re good memoriae.
BAWYF.R- [vrmrvoiiir) Despite the problems
Ki-rH.-yW^ by the confidential files, .hi Boy Scouts
have been reluctant rvm to admit that documents exist.
DON WOLF (iptf. We were aware of the fact that Boy
Scouts had internally their own list. Blacklist, if yon
will, of troubled individuals who hsd volunteered for
Bey Secrets eervvee.
SAWYER /votes-over/ Dos Wolf of Big Brothers/Big
Sisters waa convinced the extensive Bey 9eeut files
could help his organisation fight the problem of child
Mr. WOLF: And we wanted to have access to that list,
and aceiuerl them that w* would likewise keep a lis*
and share that information with them. They said. "We
don't have the* lis* the* you think w* have."
SAWYER: They were lying.
Mr. WOLF: Wall, they certainly wouldst admit that
they had a list, and ere bellevad them to have * list. re*.
SAWTEH. [voicwovtr) By 1*79. Si* BrvUiexwBla
Sistsn had already eexnowl edged their orgmlistinn
was a targvi fur all utters. Without, the Boy Scouts' hah)
they aendiad their own esse* and ended up making than*
apuucaUun process* use of the toughest is the nation It
include* police checks, s training program, and a probe-
uoo ptn-kel WoU* aay* tha Boy Scouts' approach didst
work.
Mr. WOLF: They tried to bide it, and that waa a bigger
part of the problem. They didn't recognise that It was a
pan of the problem, and they didn^jeek to become a
part of the solution.
8AWTER; Your erttic* aay, to put it bluntly, that you
war* drtsjad ricking and ten am in g into dealing with
too caHef aoue* problem, and that what you wanted to
do, ustii you were forced to do it. was just huah it up.
Mr. LEWIS: Thsre are people that want a silver bullet
answer to everythmg, snd ware not going to pleass
people who expect an absolute silver bullet solution to
this problem,
SAWYER Ivoiet-ovtr] The confidential fuss show the
Boy Scouts' answer to the problem often came down to
public relations damage control On* scoutmaster was
secretly put on probation en the «-■-»■•"♦-•" that h* not
touch boy*' genitals r.-abtoluuly NO TOUCHJNO of
any port of th* body.... 7. Parents war* talked out of
pressing charge* .against one accused scout lssdsr
rosaed sAsm not to notify (A* poiien...7. And in the ease
of another accused mas. a national hsailiiiiaima official
wrote. "I hop* the new* madia mimtimi ite silanat
relating to his mvolvement with Scouting."
Day One's review of hundred* of Res' Remit file*
ahow* an averag* of 99 reports of child abuse in th s or.
gasusation every year.
finsrrtjieuiuigj Isn't that s problem?
Mr. LEWIS: It's vary imrmrtant to ue that one caae is
one too many. Ninety-nine out of 600. TOO, 800 local
council*. I dpn't thine that yoo can aay that's ajiiiihlssn
3AWTKR: You can t aay that's a probWmT
Mr. LEWIS' Again, on* ease ie one toe tossy.
SAWYER. Well, than. youV* got almost a hundred, en
sverea**. a year. That's a 100 tirnee was* s tveblaa*.
Mr. LEWIS: And you work forward ilaiaairslin and ea-
hanrtng pregraass as you go.
SAWYER: Th* mnfUiantial Bias shew th* Bay Scout*
' ere eweadee late in reacting to the pechlew. and even
*" today the Boy Scout* do not admit they are a primary
' targe* ef comers, la fact, they call their neesissHsii •
leader in sax abuse prevention Th* abuser* thams*lve*
^ paint a very different picture
— (inurvmjuAf] If you war* back out there today sad
you weren't getting help, yeu think you esoid find • B*>
9ssakrwaa> taT\K*a0/
•CARLBT Oh, I— it's— Tm sure that the) pceenuci u
there, surety. Sonstoody is— somebody is needy anongti
there * eoaaebody that waste e good Wader. Yea. that'* i
rtrwsftrTHty. of course it ia.
SAWYER. Aud User* are other Carls out there.
"CABT.B*: Yes, unfortunauly, there are.
SAWYER. Ae a matter ef fact, is tha past month at leas
Or* mor* erect leader* in Ova differae* state* war
Bcsrasaaswi tor sexually abusing the children in their can
A* for th* Roy Scouts, thay told us Just today they hare a
arm child proescaoB programs in th* i
ANNOUNCER: Stfll to come on Day <
RICE I rffflrT More and more pawns* east afford t
bin that lawyer that cost* 110.000. 160,000. 1 100,000
ANNOUNCES: Can you get your day to coon with s
or«rwn*ia»»d, overworked ecurt-appommd attorney?
Juag» CALVIN JOHNSON: Justice is not equal
had to this room by ail. no, it's not.
ANNOUNCES: And—
[horn* aideo of tornado]
WOMAN: Tim* v> go ins ids
o
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